If Repair Clauses Don’t Match, Mind the Gap

This article appears in the special November issue of Habitat, “Governing Documents Through a Legal Lens.” 

The standard form of proprietary lease includes a “lessor repair” section (often included as Paragraph 2 of the lease), which says, “The lessor [the apartment corporation] shall, at its own expense, keep in good repair all of the building, including the apartments, the sidewalks, the courts surrounding the building, its equipment and apparatus, except those portions the maintenance and repair of which are expressly stated to be the responsibility of the lessee.” 

What that means is that the corporation is responsible for maintaining the entire building except for the portion of the building that is the responsibility of the lessee. This portion of the lease works hand in hand with the “lessee repair” section, which is usually included as Paragraph 18 of the lease. 

It’s important that these two clauses work together and be consistent so that areas of repair don’t fall through the gap. If it is difficult to determine who is responsible for a particular item of repair, problems arise. Therefore, boards should look at their proprietary leases, particularly these provisions, and make clear what the shareholder’s responsibilities are. The responsibility for the following repair items should be clearly delineated: windows, shower bodies, shower pans, mixing valves, chimney flues, chimneys, prior alterations, greenhouses and terrace enclosures, and areas of apartments that may have been altered previously, either by the current or a prior shareholder. 

Carved out from the lessor’s repair responsibilities, and important to include in any comprehensive proprietary lease, are the following elements: the portion of the property that is reserved to the lessee; any repairs to portions of an apartment that have been altered by the shareholder or by a prior shareholder; and any decorative elements to an apartment. The apartment corporation is responsible for maintaining and repairing the supports, beams, roofs, terraces, cellars, chimneys, entrances, street doorways, main halls, and stairways. 

One of the areas where we see a lot of confusion and some litigation is over who is responsible for the replacement of a finished floor, wallpaper, lighting fixtures, and any decorative elements. The lease should be clear that the co-op is only responsible to repair the walls, the floors, and the ceiling, but not any decorative finishes or finished floors.

The lease should state, “In no event other than in the event that the lessor was negligent in making the repair shall the lessor be responsible for the repair, restoration, matching, or replacing of items of personal property within an apartment with any installations, fixtures, or alterations performed or installed by the lessee or any prior lessee of the apartment, or any decorative finishes such as wallpaper, special paint, carpeting, flooring, or tile work.” 

The paragraphs relating to a shareholder’s repair and a co-op’s repair need to work together. They need to be consistent. They need to be comprehensive. 

Jeff Reich is a partner in the law firm of Schwartz Sladkus Reich Greenberg Atlas.