Q. We have an apartment/shares in a Brooklyn co-op. In 2016 we experienced two leaks in our shower room (which is in the bathroom, but separate from the bathtub). With the first leak, the building plumber broke part of our shower wall, replaced the pipe, and then repaired the broken wall. With the second leak, the water was coming from the drain area of the shower room.  Please note that we purchased the apartment with tiles on the shower floor and never changed anything. When the second leak appeared, the building plumber again broke the same part of the wall with the new pipe inside, and stated that the pipe that he replaced on his first visit was okay – and he did nothing with the the leaking, affected floor.  As of now, we still have a hole in the shower room and obviously we cannot use the shower, now for the second month. 

There have been several leaks/floods in our bathroom and in our line that have caused damage to our apartment, particularly in the bathroom. Because of the frequency of the leaks, we requested prior to 2016 (as suggested by a board member) that the property manager keep track of the leaks and use preventive measures, since years of water damage have obviously had a huge impact on our bathroom/shower and its “life expectancy.”

Over the years we have continued to keep the surface shower flooring and wall in excellent repair, (we never caused any leak to other apartments or the building) and have never tampered with the underlying areas, which are the building’s responsibility. We never changed or replaced anything in the shower since we purchased the apartment. We communicated all our concerns promptly (via emails) with the building management and the board. Should we pay full maintenance for the months that we could not use a crucial service (i.e, shower)? 

—Tenant Who Desperately Needs Help

A. “The co-op is responsible for repairing the shower drain/leak,” says attorney Rachel Sigmund of the Manhattan based firm Adam Leitman Bailey, P.C. “The shareholders are cooperative-tenants under New York Law, and therefore the Housing Maintenance Code applies. Accordingly, no matter who is at fault, the co-op is responsible for the repairs and all costs related thereto. There are, however, certain exceptions for conditions resulting from shareholder negligence, in which case the shareholder may be responsible for reimbursing the co-op for all repair expenses incurred. As far as withholding maintenance, this could be dangerous. The shareholder should pay the full maintenance, but write on the check ‘under protest,’ and should immediately start a case in housing court in the HP Part to force the co-op to make the repairs. Before going to court, the shareholder should also call 311 to have the City place violations against the property. In addition, the shareholder should urge the board and/or management to file a claim with the co-op’s insurance, with payments going to the shareholder. Withholding maintenance is dangerous, because the board may respond by bringing a nonpayment case against the shareholder in housing court which, even if the shareholder successfully defends the action (based on breach of warranty of habitability, discussed below), can lead to blacklisting, hurting the shareholder’s chances of being approved for another apartment in another building in the future, whether as a shareholder or as an ordinary tenant.

“Under the Warranty of Habitability [New York Real Property Law (RPL) Section 235-b], a landlord, or in the case of a co-op, the board of directors (‘lessor’), are deemed to warrant that “the premises…and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.”  The Warranty of Habitability can be a defense and a counterclaim in a nonpayment case—but, even if won, it will not prevent blacklisting.

“Courts have held that the maintenance abatement amount is typically the percentage of reduction of the value of the apartment during the time period that repairs were not made or services not provided. The amount of the reduction depends, in general, on the severity of the condition(s) in the apartment. Cases like what you have described have led to abatements on the order of 5 percent  of the maintenance during the period of the problem. 

“New York courts have held that whether a condition constitutes a breach of the Warranty of Habitability is to be determined on a case-by-case basis. In analyzing a potential breach, courts will look at “the extensiveness of the breach, the manner in which it impacted on the health of the tenant and even the measures taken by the landlord to alleviate the violation. . . . and whether or not the defects deprived the tenant of those essential functions which a residence is expected to provide as viewed by the eyes of a reasonable person.” Suarez v. Rivercross Tenants’ Corp., 107 Misc. 2d 135, 140 (App. Term, 1st Dept. 1981).  Clearly, this set of facts is such a breach of the warranty, even if the monetary compensation to you would be relatively small. Since blacklisting is such a problem, you might consider suing in Small Claims Court.  However, the HP proceeding, above described, would get the drain/leak fixed for you without your having to pay any court fees.”