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Who Foots the Bill?

When it comes to repairs in a co-op or condominium, the responsibilities are a two-pronged concern: who’s responsible for making the repairs and who’s responsible for the cost? For co-ops, those responsibilities are often found in the proprietary lease; in condominiums, they’re in the declaration and bylaws. It gets a little murkier when the repair is outside of the apartment in a limited common element, such as a balcony or a roof. Then it’s not inside the apartment, but it still technically belongs to the unit-owner or the shareholder.


I have a case right now where I represent a condo board in Brooklyn. A unit-owner owns the penthouse apartment and the roof above her apartment. The roof leaked, which is the unit-owner’s limited common element, and it damaged her apartment. So she’s claiming the condominium is responsible for the repairs, while the condo board is claiming she’s responsible. When it comes to a roof, there’s actually a law that gives some light to this murky area. Section 78 of the Multiple Dwellings Law states that buildings with more than three units are responsible for making the repair, regardless of what the declaration or bylaws may state. So the condominium in that situation will be responsible for making the repair, but the cost will be determined by the declaration and bylaws.


The declaration provides that the condominium board is to repair limited common elements — except when those repairs arise out of misuse by the unit-owner. We believe the unit-owner installed a shower on the roof and also installed artificial grass and several doors without signing an alteration agreement with the condo board.


At this point in time, I’m just trying to get the roof fixed before the winter. But after this, I believe that there will be some sort of money judgment, hopefully in favor of the condominium. The lesson for shareholders and unit-owners buying into a co-op or a condo is: Be aware of the repair policy. You want to know if the seller has any standing alteration agreements that make you responsible for any repairs in the future. A lesson for boards from my current case is to track everything that’s been happening, keep track of all alteration agreements, and make sure that when you tell someone to repair something, they actually repaired it.




Trial Needed to Determine Whether Co-op Failed to Maintain Roof 

A shareholder sued the co-op for breach of proprietary lease and negligence arising from its alleged failure to make repairs to his roof, resulting in leaks into his apartment. While the Appellate Division found that the lower court properly denied summary judgment on the breach of contract claim, it declined to dismiss the negligence claim. The co-op had a non-delegable duty by law to maintain the roof in good repair that was independent of the parties’ obligations under the proprietary lease. The court noted that because there was a viable negligence claim, the plaintiff could seek consequential damages, including lost rental income for one of the units that was sublet. 


Gendell v. 42 W. 17th St. Housing Corp.

April 29, 2021

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