Braverman & Associates, P.C.

ALTERED STATES

Without an apartment alteration policy, your property is heading for trouble.

By Edward T. Braverman

Edward T. Braverman is senior partner of Braverman & Associates, P.C., a Manhattan law firm that specializes in cooperative and condominium housing law.

It is a beautiful spring Sunday morning. You're having your morning coffee on your terrace, feet up the New York Times spread before you. Isn't it peaceful? Just then, the quiet of the ambient traffic noise is shattered by a polite "Good morning": from the adjoining terrace. "Hi. I'm Fred Jones, your new neighbor. We closed on Friday. And by the way, this is Sal, the foreman of my demolition crew, and back there is Marty, my general contractor."

Is this greeting going to mark the beginning of your worst nightmare, or has your board put procedures in place to balance the rights of those tenants who want to upgrade their units with the rights of their neighbors who seek the quiet enjoyment of their homes?

A good question. Boards must be aware of procedures and requirements needed to help protect and preserve the rights, sanity and security of the other owners within the building during alterations.

Whether you live in a condominium or a cooperative, the protections which a board must seek will not vary substantially. As with other procedures, one must initially look to the governing documents for guidance --- either the bylaws and/or the declaration (condo) or the proprietary lease (co-op).

Generally speaking, those documents empower the governing boards to reasonable control the alterations which owners my seek. These documents and the case law interpreting them will permit the respective boards to require an owner to enter into an agreement with the apartment corporation or condominium spelling out the obligations and limits needed to protect and preserve others. New York courts have uniformly upheld the limits, restrictions, and consent procedures imposed by boards, providing those decisions are made reasonably and without prejudice, bias, or bad faith.

First Steps

Board Policy. To avoid misunderstandings, boards should adopt a general policy establishing uniform standards that each owner must meet in order to receive approvals.

The Architect. Every application for permission to alter should be accompanied by an architect's drawings and/or specifications. No board could possibly be expected to evaluate a proposed alteration without knowing the extent of the owner's plans. Once these drawings and specifications are available, an independent architect should evaluate them at the owner's cost and expense.

It is the architect who can best judge the feasibility of the planned alteration. He can explain whether or not the building's systems (mechanical, plumbing, electrical) will be affected; whether the apartment configuration is to be changed to expose adjoining unit-owners to the inconveniences of additional noise, vibration, or increased potential for water damage. Only through these drawings and specifications can the board ascertain whether the owner makes only approved alterations.

Scheduling. Together with the submission of the architect's drawings and specs, the owner's architect should be required to supply the board with a work schedule. This should provide the length of time needed for each construction trade, and for the job in total. With this in hand, the board can establish and monitor the length of time it will take to complete the work. The consent granted should include an outside date for completion, so as to minimize the overall inconvenience.

To assure compliance, the board should establish a fee for each day that the owner continues work beyond the fixed date. Noisy work should be scheduled for times when it will produce the least inconvenience. In some buildings, all alterations are limited to the summer when many of the owners are away.

Money Matters

Indemnification/Insurance. An applicant should be required to notify the surrounding tenants who will be most affected. The notification should be in writing and provide that the tenant affected by the work will be insured and indemnified against any damage. Cracked ceilings and plaster work in the adjoining apartment are not uncommon in the course of renovation. A board may occasionally require photographs of adjacent apartments before construction to set a benchmark for possible damage.

It should be the obligation of the altering owner to rectify the problems created in his neighbor's apartment. This can be accomplished through insurance taken out by the owner doing the construction. The insurance should name the affected tenants, the co-op, and its managing agent as additional entities covered.

Moreover, each contractor should be required to deliver certificates of insurance, similarly naming all affected parties as additional entities covered. The certificates should be in hand before the work begins and be reviewed by the co-op's counsel or insurance advisor. Before the work starts, the board should also make certain that it has received copies of the written notifications (containing the indemnification) to the surrounding tenants.

The Cost. It seems axiomatic that an owner altering his apartment should be required to pay for everything. However, specific provisions should be made in case mechanic's liens, for unpaid labor or materials, are filed against the building. They must be quickly removed. The building should also be assured that it will be reimbursed for all of its costs for reviewing the owner's drawings and specifications; monitoring the work; employment of counsel; and any other incidental expense or damage sustained.

Security Deposit. To insure the co-op or condo that the work will be performed according to the building's rules and regulations as well as in accordance with all of the pertinent municipal codes, rules, and regulations, and that all expenses and/or damages are paid to the building, the altering owner should be required to post a security deposit. This should be large enough to adequately protect the building from everyday occurrences. It is the owner's insurance, and that of his contractor, which will guard the building and its tenants from catastrophic events.

The owner should also be required to obtain all municipal sign-offs at the conclusion of his work and to supply the building, if applicable, with an amended certificate of occupancy. This, and the monitoring of the work by the building's architect will insure compliance with all applicable laws, codes, rules and regulations. The architect should also, make a final visit to the apartment, at the sole cost and expense of the owner, to assure the board that the alterations were completed in accordance with the original drawings and specifications. It is only then that the owner will have complied with his obligations and can have his security deposit returned.

Peace of Mind.

Physical Disturbances. To minimize the disturbances to other tenants, all works should be required to use the building's freight elevator. During the course of each day, the doors and vents of the apartment in which the work is being performed should be taped to minimize the dispersion of dirt and plaster dust though out the building. Rubbish should not be stored within the apartment but removed each day.

Strict requirements must be in place concerning the use of power tools. It should be clearly spelled out between the parties that either the super or managing agent has the ability, without creating liability, to stop the work at any time that the board believes normal daily operation of the building has been interrupted or that the work is not proceeding according to the original drawings, specifications, or the requirements of the alteration agreement.

Labor Relations. Most buildings in the metropolitan area employ union labor, and are classified as "union shops." Non-union labor (Contractors) can result in disharmony between building personnel and the men performing the alteration.

Care should therefore be taken that it is the responsibility of the owner to maintain harmonious relations. If the building's personnel object to non-union workers, the owner employing that labor will immediately cease all work and employ only union people. The building must be given the right to stop work if it believes that harmonious relations between the contractor and the building's employees are jeopardized.

Safety Issues.

Hazardous Materials. The majority of the building stock in the New York metropolitan area was constructed using materials now considered hazardous (i.e., asbestos and lead paint). It must be the responsibility of the owner performing the alterations to legally remove and/or encapsulate any hazardous materials, which exist within the apartment. The owner must supply the building with a special report concerning the existence of hazardous material and, if it must be removed or encapsulated, to do so only by licensed personnel with proper insurance.

Security. The security of the person and property of every owner is of concern to most buildings in the metropolitan area. Doormen, lobby staff, video cameras, locked doors, and other security devices protect the building's occupants. A major apartment renovation will bring scores of strangers to a building. It may be prudent to require an owner who is in the process of renovating to pay for a separate guard or, perhaps, the overtime wages required to have off-duty staff help with the needed additional security. At the minimum, workers should be required to have badges or identification when entering and working within the building.

The Final Document.

The Alteration Agreement. To formally create the obligations suggested, as well as other requirements that would be appropriate, the board of directors should require that the applicant execute an alteration agreement. Moreover, this should require that the owner continue to be responsible for the alterations, requiring any subsequent purchaser to assume continuing obligations for the repair and maintenance of the alteration.

Default provisions (with other building documents) should be contained within the agreement to insure compliance, and funds that may fall due under the agreement should be collectible in the same fashion as maintenance or common charges.

With a firm policy, and a strong alteration agreement in place, a board will be able to monitor and control alterations and balance the rights of the majority with those of individuals seeking to improve and upgrade their own homes. By doing so, the disturbances created during Sal's demolition and Marty's rehabilitation will be palatable enough so that you can enjoy Sunday mornings on your terrace with the New York Times.

Reprinted with permission of Habitat magazine.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

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