It pays to periodically review the basic obligations of boards of directors or managers in residential cooperative or condominium buildings. As outdoor temperatures change, leaks sometimes worsen.
Notwithstanding the claims of boards, managing agents and their attorneys to the contrary, the control and responsibility of common elements by boards, whether in a cooperative or condominium building, is a legal reality. See e.g., NY Multiple Housing Law § 78, Condo Act § 339-ee(1).
This responsibility includes leaks from roofs, façades and — depending on the offering plan, declaration or proprietary lease — windows, including mullions, sashes and caulking. It also includes leaks from pumps, pipes, valves and steam systems, unless under the offering plan/declaration or proprietary leases, the item leaking is the sole property or responsibility of the unit owner.
This all sounds simple in principle, but in practice, it is anything but. Water follows its own path and always seeks to level. Further complexities result from the tendency of certain units, such as penthouses, shore-facing and north-facing units, to suffer more leaks than others. This can leave unit owners with the false impression that the affected units are “favored” or unfairly imposing costs on other unit owners.
A common scenario is a minor leak stain on the ceiling of a penthouse unit. Over time, the stain becomes larger. Eventually, the ceiling deteriorates. The leak is having an impact on only one unit, so the board looks for an inexpensive solution, which does not address the underlying problem, beginning a cycle of repair and failure. As the cycle continues, the board is frustrated by the expense, and the unit owner is resentful.
Another common scenario involves water leaking into a unit, yet exhaustive probing and inspection of the unit immediately overhead is negative. Nonetheless, the overhead unit is inconvenienced and the downstairs unit suffers water damage. The water is not necessarily leaking to only one floor or directly down.
A third common scenario is an unexplained leakage into a unit, but the leak appears within a few feet of an exterior wall. Again, the focus is on the upstairs unit, with no evidence of water from that unit.
Sadly, this is the approach of many buildings. Not only does it fail to locate the source of the problem, but it also damages the sense of community.
These three scenarios share an assumption that the water is traveling down from the upstairs unit with no consideration of other possibilities. Boards and managing agents cannot limit their investigation to the upstairs unit alone.
The first scenario requires a careful professional investigation of the roofing and roof flashing systems. If the roof has outlived its useful life, it needs to be replaced. Patches may last a few weeks or even three to six months, but that is the time to plan a roof replacement, not to forget about it.
The second and third scenarios require a review of building plans to ensure that roof drains and other piping systems are not leaking and contributing to the water intrusion in the unit suffering the leaks. Additionally, piping runs from other units, as well as adjacent units, need to be checked for leaks. This check should include both the units directly adjacent to the site of the leak and the upstairs unit. When in doubt, roof, tub, sink and shower drains must be tested by introducing dye-colored water. If the water appears at the site of the leak, the source of the leak has likely been traced. If the investigation of the interior pipes, roofing and roof drains is negative, check the façade and windows.
Many façades are water-permeable. If the façade and windows are implicated, the leaking will be worse after heavy or driving rain. Unless the drains, which appear as small open tubes at balconies, floors, or ground level, are open and operating, the water may be traveling outside the drains and entering the building. Windows may leak around the edges, typically at the caulking.
Sometimes the only way to investigate façade or window leaks is to perform water tests with dye. Spray water under pressure at the façade or windows, section by section; if the dyed water appears at the site of the leak, the façade is the source.
If the leak is intractable, one option is to have the building design professionals investigate. It may take time, but typically they are able to locate the source of the water. While the cost is inconvenient, finding the leak helps control both the building and the unit owner’s insurance costs.
Most importantly, boards and management agents must engage in thorough investigations into the causes of leaks. Half-hearted or incomplete investigations accomplish nothing. Investigations do not discharge the fiduciary duty to the unit owners, which would leave the board open to litigation and the unit owners defensive, frustrated or angry.
This column presents a general discussion. This column does not provide legal advice. Please consult your attorney for specific legal advice.
Carol A. Sigmond
Partner
Greenspoon Marder LLP
1345 Avenue of the Americas, Suite 2200
New York, NY 10105
carol.sigmond@gmlaw.com
(212)524-5074
