When Must Enclosures Be Removed?
Sept. 25, 2015 — If, after all the considerations of legal, aesthetic, and other issues, a board decides that an enclosed balcony has to come down and not go back up — what then?
"The owner will scream and moan and say, 'How dare you?' and offer 17 reasons not to do it," Kenneth Jacobs, a partner in the law firm Smith, Buss & Jacobs warns. Among the arguments, he says: "It was there when I bought it. There's no alteration agreement, so how do you know the co-op/condo didn't install this? You're the one who has to make the structural repair" — which is true — "so, therefore, you've assumed all the responsibility for repairing and replacing anything I built" — which is not true except for something "like an earthquake, because that would be a casualty, and casualty losses differ from repair and maintenance."
And who pays for the enclosure's removal? "An argument could be made either way on cost," says Aaron Shmulewitz, a partner at Belkin Burden Wenig & Goldman. "The co-op owns [or the condo board administers] the building and you were allowed at some point to install [it] and assumed the risk that at some point it may have to come down, so the [apartment-owner] should pay for everything. The counterargument is, 'Everything was fine until you (the board) decided to remove it. I understand you need to make repairs, but here's my engineer's report saying my enclosure is not causing the leak, and even if it is, I'll pay for removal but the co-op must pay to reinstall.' Conversations like that happen every single day and often lead to litigation."
A lawsuit should be avoided if possible, since it raises the stakes and expenses for everyone, and the board might not necessarily win. "The unit-owner or shareholder should pay for it," argues Jacobs, "because when they put up [the] balcony, the alteration agreement should have said that the owner, at the demand of the co-op or condo, must remove any alterations in order to allow inspection or repairs. In theory, the owner removes the enclosure, the repair is made [at the co-op/condo's expense] and the owner restores the enclosure at the owner's expense."
Still, as Jacobs stresses, that's in theory. In reality, he says, "buildings frequently make a monetary concession of some sort. It makes the owner feel better. If it's going to cost the owner $10,000, the building says it'll pay a couple thousand. That may be the most expeditious way of handling it. I tell boards what their rights are and then say, 'Look, put yourself in their place. You may save yourself legal fees if you volunteer to pay a little bit. You absolutely want to keep it out of court. I generally find that patience and a few concessions here and there can solve the problem."
But not always. In his experience, Jacobs recalls, it was only a major problem once. "But that was with a huge terrace with planters and," the attorney adds with a laugh, "the homeowner was a lawyer."