Wet Over Dry

Aman’s home is his castle. And now that the price of castles in New York City has officially gone through the roof, more and more of the people who own those castles have the desire and the means to fix them up in royal style. Of all the costly modifications now under way in New York apartments, some of the most elaborate – and controversial – are taking place in kitchens and bathrooms. When a resident wants to expand or move one of those heavily used rooms so that it’s positioned over the downstairs neighbor’s living area, trouble is usually on the way.

For co-op and condo boards, this issue – known prosaically as “wet-over-dry” construction – is a ticking bomb that can result in anything from bruised feelings to insurance nightmares to costly lawsuits. One such lawsuit, now pending before the state supreme court, is a cautionary tale with lessons for every co-op and condo board in the city.

The legal battle is being waged in a 48-unit co-op located in a vintage 1920s building on Manhattan’s Upper East Side. After a physical survey of the entire property in 2003, the co-op’s architect advised the board that the 80-year-old copper-and-brass water lines were in a “delicate” condition. In November 2005, a couple on the sixth floor submitted renovation plans to the board. The co-op’s proprietary lease states that approval for renovations may not be “unreasonably withheld or delayed.” The plans called for a new bathroom to be installed directly over living space in the apartments below them.

The board had two fears: (1) that modifications to the “delicate” water lines would cause catastrophic leaks and (2) that approving the plans would set a potentially dangerous precedent. So the board turned to its attorney, architect, and manager. Based on their opinions and an internal debate, the board adopted a policy on February 6, 2006, forbidding all wet-over-dry construction. The board suggested that the couple on the sixth floor submit a revised renovation plan – minus the new bathroom. Instead, the disgruntled couple sued the corporation.

“We were particularly concerned that construction of a whole new plumbing network would create a source of water leakage where none previously existed,” said board member Rosemary Shmavonian in an affidavit filed in state supreme court. “Moreover, we were concerned that the areas most directly exposed to this new source of water were the ‘living spaces’ in the five ‘A-line’ apartments [underneath].”

Bruce Cholst, a veteran co-op and condo attorney who represents the co-op’s insurer, contends that the legal question now before the supreme court is not a simple matter of who’s right and who’s wrong.

“The courts have construed that boards must have a justifiable concern when they deny or delay an alteration request,” Cholst says. “The issue is whether the board’s position is plausible and justifiable. Our contention is that there are valid reasons for turning down this request.”

While not unanimous on the issue, most managers advise boards that allowing wet-over-dry construction is an unnecessary and unwise risk. But some boards decide, nonetheless, that it’s a risk worth taking. Frederick Rudd, president of Rudd Realty, advises such boards to include a policy in the alteration agreement that should be reviewed and, if necessary, modified annually.

Such policies should require specific safeguards. “For example,” Rudd says, “if someone expands the bathroom so the addition goes over the living room in the downstairs apartment, there must be safeguards that meet specific, rigorous criteria, such as water catch pans with alarms that shut off the water when a leak occurs and waterproof membranes in the floor to prevent leaks. We recommend that agreements take a ‘belt-and-suspenders’ approach.”

The “belt-and-suspenders” approach – making doubly sure that problems don’t develop and the corporation doesn’t get caught with its pants down – almost invariably requires the expertise of an architect. Oswald Bertolini, principal at Bertolini Architectural Works, handles about a dozen requests a year from clients who want to do wet-over-dry construction. Each case is different, he says, and must be assessed on its unique merits.

“[Wet-over-dry construction] is very complex. Some people are completely against it and some people think it’s no big deal,” he says. “My feeling is there’s no need to say a blanket ‘no’ across the board. If you’re willing to do everything you can to prevent a disaster – structural damage or a flood – you’re going to be okay.”

For bathroom and kitchen appliances that use large amounts of water or cause vibrations, Bertolini recommends sensors that detect leaks and trigger an alarm, along with pans to catch leaking water. “And,” he adds, “we definitely put in thick waterproofing under a new bathroom floor.”

But Ivan Mrakovcic, architect for the Upper East Side co-op now in court, argued in an affidavit that there’s no such thing as fail-safe precautions: “Permitting wet-over-dry construction increases the prospect of developing vertical leaks. Waterproofing systems are not fool-proof and do not eliminate the prospect of such leaks. Thus, risk-averse boards are justified in prohibiting wet-over-dry construction.”

Whatever boards decide to do, everyone agrees that requests for wet-over-dry construction are on the rise – and likely to become even more common in the future. “There has definitely been an up-tick in requests for this type of construction,” says Cholst. “Renovations have been getting much more intricate over the past several years. Because people are paying so much for apartments, they want to create dream homes, and they have the capital to do it. They’re creating ever- more elaborate interior designs, with more bathrooms and larger kitchens.”

His advice to co-ops? “A savvy board will adopt a building-wide policy of no wet-over-dry construction – and then proactively explain the underlying rationale to shareholders. That way, the shareholders are much more likely to accept, albeit grudgingly, the board’s decision.”

Bertolini, the architect, counters that some old buildings with aging and delicate plumbing, like the embattled Upper East Side co-op, might be wise to bite the bullet and pay to replace all the water lines. “In the long run, it might be better for the co-op,” he says. “The building would be more attractive to people with deep pockets, and the value of everyone’s investment would go up.”

In other words, in this city of ever-more-elaborate castles, there’s nothing cut-and-dried about wet-over-dry construction.