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Q & A: Who Pays for Water Leak?

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By: Adam Leitman Bailey, P.C.

June 1st, 2011

Q: I own a cooperative apartment in Brooklyn and I’m hoping you could offer an opinion on a plumbing issue. In my bathroom I have two water valves protruding from the wall that control the hot and cold water flow to the sink and the tub. The problem is when I close the hot water valve it doesn’t close the water flow completely. I need to repair my faucet and can’t do it without stopping the water flow completely. I reviewed my proprietary lease and it says “fixture maintenance is the responsibility of the lessee” but doesn’t elaborate on what is considered a fixture. It’s going to be a good amount of work to change the valve because the plumber has to shut down the building’s water, remove my vanity and break into the wall to change the valve. Do you think replacing the valve would be the responsibility of the cooperative or would it be my responsibility and therefore at my cost?

— Wishy-Washy

A: “To determine whether the valve repair is your responsibility, you must (1) review the sections of your proprietary lease and bylaws dealing with maintenance and repair; (2) review the sections of your proprietary lease and bylaws that define the “Unit;” (3) determine the definition of “fixture;” and (4) determine the cause of the valve defect,” explains an attorney with the Manhattan-based law firm Adam Leitman Bailey, P.C.

“Most proprietary leases and bylaws define responsibility for maintenance and repair in terms of what is included in the definition of the “Unit.” Usually, any maintenance or repair within the “Unit” is the sole responsibility of the shareholder. A common way to define “Unit” is “the area measured horizontally from the outermost face of the exterior wall bounding the unit to the innermost wall of the unit separating the unit from other units and the corridor.” This definition may be qualified by “including, but not limited to” followed by a string of “Unit” components (which commonly include “fixtures”).

“If “fixture” is not defined in the bylaws or proprietary lease, you can look to outside definitions. According to the 6th Edition of Black’s Law Dictionary, a fixture is “a personal chattel substantially affixed to the land, but which may afterward be lawfully removed therefrom by the party affixing it, or his representative, without the consent of the owner of the freehold.” A mechanical valve that is tied into the building’s plumbing system and cannot be removed by a shareholder, will not be considered a “fixture.” Therefore, the fact that the term “fixture” is included in the definition of “Unit” will not necessarily mean that it is your responsibility to fix the defective valve.

“Therefore, you should ask your plumber or professional to identify the source of the defect in order to determine if the source is within the definition of “Unit.” If the source is the plumbing that is behind the walls, and not the faucet or value inside of the four walls of the “Unit,” then, based on the definition of “Unit” above, it is the cooperative’s responsibility to repair the valve defect. If however, the source of the leak is the actual faucet or valve within the four walls of the “Unit,” then, based on the definition of “Unit” above, it is likely your responsibility to make the repairs.

“If the repairs are ultimately your responsibility, make sure you follow the detailed protocol outlined in your bylaws and proprietary lease for repairs or alterations to ensure that your professional and the scope of work are approved by the cooperative board.”

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS