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25 Nov 2016

We’ve all experienced it:  the heat or hot water going out , very strong odors or fumes or a large number of uninvited creatures invading our living space, or perhaps a broken pipe that leads to flooding, mold, and a host of other problems.  What do you when your apartment is no longer a place you can live?

Every landlord has a contractual obligation to provide a tenant an apartment that is livable safe, and clean.  In other words, habitable.  This is called the warranty of habitability.  If your landlord is in breach of this obligation, you have a few options.  You can:

  • withhold rent until repairs are made;
  • attempt the repairs yourself and deduct the cost from your rent;
  • sue your landlord for a rent reduction; or
  • seek to recover previous rent payments as damages through litigation.

However, before you decide to spend your rent in other places, be aware that withholding rent does not mean that you never have to pay it.  This approach may result in your landlord suing you for nonpayment of rent, to which you can respond by counter-suing for breach of the warranty of habitability.  You should also be prepared to provide proof that you have saved the back-due rent money, and are ready to pay it to your landlord once repairs are completed.  Attempting the repairs yourself can also be a dicey proposition.  Before you begin, you must give your landlord notice in writing and provide him a reasonable amount of time to complete the repairs himself.  You should also keep all receipts for such repairs.

How do you know if the warranty of habitability applies to you?  The obvious example is if you are renting an apartment.  Perhaps a less obvious case is that in which you are a shareholder in a cooperative building.  The relationship between a co-op board and a shareholder is a landlord-tenant relationship, so the warranty of habitability still applies.  Instead of rent payments, as a shareholder, you would seek a maintenance abatement.  Unfortunately, the same is not true for condominiums.  Courts have routinely held that there is no landlord-tenant relationship between a condo board and a unit owner.

18 Nov 2016

Death and taxes are not the only certainties: your building’s major systems and components will not last forever.  What happens when your board does not set aside funds on a regular basis to account for future repairs and replacements?  Big special assessments.

Which building systems and components should your board be prepared to shell out reserve funding for?  Anything that is a common area maintenance responsibility that exceeds a certain minimum threshold cost, and has a limited lifespan:

  • The components of your building’s climate-control system;
  • swimming pool surfaces;
  • elevators;
  • alarm systems;
  • roofs;
  • interior décor in common areas;
  • sidewalks, streets, parking lots, and garages;
  • balconies, decks;
  • masonry walls.

If you live in a coop building, the building’s underlying mortgage should also be a reserve item, as your board should be monitoring and planning for the appropriate time to refinance.  The ideal mortgage for a coop is one that amortizes, paying interest and principal.

While reserves are mandated by law in some cities or states, New York City has no such requirement.   This means that some NYC buildings do nothing, while others simply perform a capital-needs assessment to determine what building systems will need replacement.  However, this assessment does not take any steps to ensure that funds will be in place to pay for those replacements.

What should your building do to be prepared for the inevitable?  Conduct a reserve study utilizing an engineer who is a reserve specialist and/or a professional reserve analyst.  Once the study is completed, your building should decide on an appropriate funding plan.  The building’s accountant or another financial adviser should take part in the reserve study to advise on where to invest funds.  Your building should also ask its insurance adviser to weigh in on insurance costs, deciding what events to cover, and to what extent.

No matter your building’s approach, building life involves certain inevitable repairs, and a host of things that cannot be predicted.  Will you and your fellow owners or shareholders be prepared to face what’s coming around the bend?

11 Nov 2016
Protecting your Rooftop Tank

You may not notice them, but rooftop water tanks are extremely common in the Big Apple. These all-important structures are essential to our way of life, providing water not only for daily use, but also for fire-suppressing sprinkler systems.  In fact, after the turn of the 20th Century, the institution of new safety codes requiring sprinkler systems ultimately led to the development of rooftop water tanks, as it highlighted the need to fix the weak water pressure above the fifth floor in taller buildings.  Water pressure is, after all, gravity fed.  Without a rooftop tank, higher floors would have suffer from weak water pressure, if they were able to get water at all.

Roof tanks generally range in size from 7,500 gallons to 20,000 gallons, though as time has gone on, both the size and number of tanks being installed on NYC rooftops have increased. Some of the increase in the size of tanks is related to environmental and conservation concerns.

New York City law requires that rooftop water tanks be emptied, scrubbed down with a chlorine solution, and flushed out several times before being refilled, at least once a year. After this process, a sample of the water from tanks that are for daily use, or a combo of daily use/fire suppression must be certified as safe and potable by a qualified laboratory.  The annual inspection and cleaning of a tank for a residential building costs roughly $1,000 or so per tank.

Rooftop water towers are also required to have annual inspections and file proof of an annual cleaning with the Health Department. Tank maintenance companies in the city usually handle that paperwork. Failing to file with the Health Department could cost a building owner or board a fine of $2,000.

In cold weather, the New York City Fire Department requires that the temperature of the water in roof tanks be periodically checked to prevent freezing.  A frozen water tank can create a life threatening liability if the fire suppression sprinklers fail.

Some of the common signs that a rooftop water tank needs to be repaired or replaced are rather obvious, such as leaks coming from the tank, or exterior mold growth or sponginess in a wooden tank, both of which are signs of leakage. All of these signs indicate a problem, as does any rusting of pieces of the tank’s superstructure. Given the large amount of weight contained within a water tank, rust should not be ignored.

With a proactive attitude toward maintenance and inspection, your building’s roof tank should last 20 to 25 years.  However, failure to heed warning signs could be catastrophic.


04 Nov 2016
Safety Now, Or Pay Later

In New York City, safety inspections are imperative, and are strictly regulated by the city’s Department of Buildings (DOB).  There are resources available that can make the inspection process significantly easier than it might otherwise be, including a wealth of information regarding building requirements available online on the DOB’s website.

The DOB requires registration and filings related to annual boiler inspections, annual elevator inspections, and, once every five years, ‘Local Law 11’ inspections. Local Law 11 (now called the Façade Inspection Safety Program or FISP), applies to buildings six stories high and counting, and requires an inspection of the entire envelope of the building to determine if there are unsafe conditions, such as loose bricks.  Cooling towers, used as a part of the building’s cooling system, must now be registered with the DOB due to an unfortunate and recent outbreak of Legionnaire’s disease.

Failure to maintain building systems can not only lead to illness and catastrophic injury, but some hefty fines has well.

  • Elevator violations can result in a $1,000 fine
  •  Boiler-related fines can lead to $1,500 annually.
  • Failure to comply with Local Law 11 once every half-decade will cost $250 per month until compliance requirements are met.

City fines are just the beginning.  Failure to safely take care of a condo or co-op property can have serious insurance-related consequences.  If an insurance company is notified that a building is overlooking safety concerns, they can drop coverage.  A lack of coverage can lead to mortgage lending issues, catastrophic losses, and major impacts on resale value.

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