Page 18 - CooperatorNews NY March 2021

18 COOPERATORNEWS — MARCH 2021 COOPERATORNEWS.COM ATTORNEYS Abrams Garfi nkel Margolis Bergson, LLP 1430 Broadway, 17th Floor, New York, NY 10018 212-201-1170 • www.agmblaw.com Barry G. Margolis, Esq. • Robert J. Bergson, Esq. Himmelfarb & Sher, LLP • (914) 682-0040 Cooperative and Condominium Law—Real Estate Closings One North Broadway, Suite 800, White Plains, NY 10601 Contact: Ronald A. Sher, Esq. • Norman D. Himmelfarb, Esq. Law@himmelfarb-sher.com • Direct Dial: 914-461-0220 Belkin Burden Wenig & Goldman, LLP Specializing in all aspects of Cooperative and Condominium Law including Landlord/tenant proceedings. Copy of Monthly Newsletter available upon request. (212) 867-4466 contact: Aaron Shmulewitz/Daniel Altman ashmulewitz@bbwg.com/daltman@bbwg.com www.bbwg.com ACCOUNTANTS ARCHITECTS architecture interior design engineering project management forensic investigations 307 7th Avenue, Suite 1001, New York, NY 10001 Tel. 212.645.3775 Fax. 212.645.4099 Form Space Image ARCHITECTURE PC SERVICE DIRECTORY  Over 30 years of coop & condo experience  Hands on Personal Attention Timely Service  Contact: Gary Adler, CPA Sarah Haar CPA   www.bassandlemer.com 516-485-9600 adler@basslemer.com Write to CooperatorNews and we’ll publish your ques- tion, along with a response from one of our attorney advisors. Questions may be edited for taste, length and clarity. Send your questions to: darcey@cooperatornews.com. Q&A Statute of Limitations on Condo Balcony Alteration Q A homeowner in a condo asks the board to allow the altera- tion of the balcony enclosure to a taller height. Th e board and manage- ment company agree and the alteration takes place. Twenty-fi ve years later, a new manager says that was improper and the balcony must go back to original stan- dards. Is there a statute of limitations on this balcony? —Seeking Clarity A “Th e homeowner asks about the relevant statute of limitations,” says attor- ney Leni Morrison Cummnins of the New York law offi ce of Cozen O’Connor. “Any claim that the homeowner has related to the board’s decision to mandate the re- moval of the balcony would run from the time the board decided to compel its re- moval, not from the date it was originally approved. Such a challenge would be ripe for an expedited type hearing called a CPLR Article 78 Proceeding, which must be brought within 120 days of the board decision. Th at said, winning such a pro- ceeding against the board will be a chal- lenge. “Balcony enclosures are subject to scrutiny during FISP/LL11 inspections. Every fi ve years, the exteriors of buildings over six stories tall must be inspected by a professional engineer or licensed architect who is authorized by the New York City Department of Buildings (DOB). New regulations require that the inspector in- clude in their inspection, and subsequent report to DOB, the safety, condition, and structural stability of any balcony enclo- sure. Older balcony enclosures were not usually constructed subject to building permits—because permits became man- datory only recently—so it is possible that the homeowner’s 25-year-old balcony en- closure does not meet the safety require- ments. Th erefore, the likely situation is that the homeowner’s balcony enclosure was inspected for the fi rst time and failed to meet safety standards. “Another possibility is that the condo board adopted a ban on balcony enclo- sures due to the heightened scrutiny of these additions during the FISP/LL11 in- spections. Unless a condominium’s or co- operative’s governing documents specifi - cally provide for the allowance of balcony enclosures, boards are within their rights to prohibit balcony enclosures. If adopted, boards must apply the ban uniformly to all homeowners and cannot grandfather homeowners with older enclosures. Do- ing so would run the risk of violating New most everything. If the leak was due to York Business Corporation Law Section the co-op’s negligence, or negligence of a 501(c), which essentially requires boards neighbor, then the negligent party would to treat all shareholders (or unit owners) of likely be responsible. If no one was negli- the same class equally. “It is also possible that this homeown- er’s enclosure, because it is a taller height, is unique and might pose some additional there is a statewide law called the war- concern to the condo board. “If the enclosure is in violation, it is generally (Real Property Law 235-b). Th e unlikely the homeowner has any claim warranty of habitability makes the co-op, against the condo board. Further, if the en- closure was built pursuant to an alteration strictly liable for anything that interferes agreement, it is likely that the alteration with the life, health, or safety of the unit agreement squarely places the burden and owner as a tenant under the proprietary liability on the unit owner rather than the lease (a unit owner is oft en referred to as board. “Th e homeowner should request the the co-op liable even if a third party like a reason that he or she is being required to neighbor in the building, or even a build- remove the enclosure. If it is due to a safety ing that is nearby, somehow causes an is- violation or a building-wide rule change, sue. Th e main exception is if the tenant he or she is likely out of luck.” Unresovled Mold Problem Q Th is question is for my neigh- bor. We own shares in a co-op prove negligence. in Long Island. She has had ex- tensive water damage and now has mold in problem and they don’t, you should make her unit. She emails the property manager your demand clear and in writing. If they and president of board to no avail. It’s been still don’t do it, you can report the condi- like this for months, with no resolution. What recourse does she have? —Need Results Now A “Th ere are two areas of re- course to address,” says at- torney Darryl Vernon of the to do the repair yourself and if done prop- Manhattan fi rm Vernon & Ginsburg. “Th e erly then claim for reimbursement. Keep fi rst is making sure the source of the water in mind that mold is a complicated issue infi ltration is fi xed and the mold removed. and oft en requires an expert to analyze the Th e second is who pays for the remedy and levels. the damages and whether the unit owner is entitled to a reduction in the mainte- nance for the time her use of the unit was before going through the expense of re- impacted. To address these issues the unit moving mold, plastering, painting, etc. If owner needs to have her agreements with the matter gets to court, the prevailing par- the co-op analyzed. Th e primary docu- ment would be the proprietary lease, and lease and Real Property Law 234.” if alterations were done by the unit owner there could be an alteration agreement ad- dressing whether those alterations have changed the rights between the parties. “Most proprietary leases say what por- tions of the unit the shareholder is respon- sible to fi x. Generally that is everything from the walls to the inside of the apart- ment and any special plumbing or fi xtures or other alterations that the unit owner put behind the walls. Th e lease will generally say that the unit owner should insure for her responsibilities under the lease and that the co-op will insure for customary things that co-ops insure for. It is most of- ten important to timely notify your insur- ance company if you are going to want to fi le a claim. “If the leak was the fault of the unit owner, which presumably it wasn’t, then the unit owner would be responsible for gent then the parties would likely simply bear their burden as outlined in the lease. “In addition to the lease, in New York, ranty of habitability which applies to leases as a landlord under the proprietary lease, a proprietary lessee). Th e warranty makes herself caused the problem. Under the warranty mold or leaks can be considered a violation. And all that needs to be proved is that the co-op was aware of the condi- tion and didn’t fi x it. Th ere is no need to “If the co-op is responsible to fi x the tion to local authorities to inspect and if a violation is found, order it be repaired. In New York City, the remedy is to contact HPD (Housing Preservation and Develop- ment) and if it’s not repaired you can go to court. Suff olk may have diff erent pro- cedures. Th ere are times you can proceed “Last, is it crucial to have documented that the source of the leak has been fi xed ty will oft en win fees under the proprietary n Q&A continued from page 7 Disclaimer: Th e answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specifi c circumstances. Always seek the advice of competent legal counsel or other qualifi ed profes- sionals with any questions you may have regard- ing technical or legal issues.