Only when it rains: Part 1, leaky roofs
By: David A. Smith
“Does the roof leak?”
“Only when it rains.”
“Honey, the weather forecast says rain”
As water is housing’s greatest enemy – outranking fire, children, and pets in that order – the most essential structural element in a house is does it keep the water out? If it doesn’t, it can reduce the bravest renovator and the calmest homeowner to quivering depression, or spluttering rage, as revealed in this New York Times story:
FIX IT PLEASE The boards of both the Slate Condominiums, above, in
Your New Condo Leaks? Join the Club
ROOFS and windows that leak whenever it rains.
Heating and air-conditioning units that can’t quite heat or cool the entire building.
Balconies with flaking concrete and wobbly railings.
Leaks offend our self-esteem. When we buy or enter into a new place, we expect everything to be pristine: scratchless sinks, nickless moulding, spotless stainless steel, even carpeting with that just-brushed look.
“Hello, Dave, this is your new apartment”
Brokers sell us the immaculate vision. Builders promise us they will deliver. Architects sketch us platonic people strolling under stylized trees. It never rains in the brochures.
Then we move in ….
“There’s always an underlying number of lawsuits about defects,” said Stuart M. Saft, a real estate lawyer and the chairman of the Council of New York Cooperatives and Condominiums –
Curiously enough, in an efficient market there should be some number of post-sale and post-move-in lawsuits. A builder should stand behind its workmanship and warranty a flawless building – yet in the process of construction, and in particular of assembling multiple components into a building envelope against the elements, mistakes and gaps can naturally occur, or arise as the building settles. Builders, developers, and architects expect a certain level of litigation; in fact, it’s cheaper to build the property to a good standard, let nature find the flaws – with any luck, small ones – and fix them, than to overbuild it to zero-defect perfection.
What do you see in this Rorschach blot? Expenses?
Except when markets turn sour, and people become more creative both in filing litigation and interpreting contracts. Then the cost of defending a latent-defects claim rises, as does their frequency:
– “but about a year ago the number started to increase. And over the next two years there’s going to be an explosion, because of all the buildings that were built at about the same time.”
Sure, fast money encourages fast building, but it also encourages fast buying. Maybe I underbuilt, but you overpaid.
He noted that building-wide problems often don’t become apparent until people have lived in a building for a while.
That’s the terrible thing. Buildings settle, and in settling, they torque the building envelope and change the vertical maze water can follow from clouds above to your walls within.
Mommy, I’m worried about the walls
Legal action is often delayed because sponsors typically control a condo board for a year or more after a building opens and can block attempts by residents to file complaints.
I knew of course that sponsors vote all the shares for unsold condos, hence that as long as the condo is 51% unsold, the sponsor will certainly have control. (Many condo association documents, drafted by developers’ lawyers, give the sponsor control even with a minority interest unsold. That’s an even bigger risk, one you should watch out for.) I hadn’t connected the dots that it therefore follows the sponsor can block litigation by voting down an association resolution to file it.
Individual owners can file, and may have to do so, but for reasons of both economy and solidarity it’s best of the association files.
All of us bought condos
The litigation window may take a year or more to open, and shortly thereafter, then it may close:
But since condo owners have a three-year statute of limitations for suing a developer or construction contractors for negligence, many people who moved into new buildings in 2007 — when about 7,000 condos came on the market — are realizing that they will soon run out of time.
Although statutes of limitations are good things – otherwise threats could be outstanding (even if unknown) for decades – they create pressures, and last-day-before-statute filings are common. So are workarounds designed to extend the statute:
A negligence lawsuit charges a sponsor or contractor with causing harm or damage to condo owners. If the owners believe a written agreement has been violated, another legal strategy is to sue a sponsor for breach of contract. The statute of limitations for breach of contract is six years.
It can take years for thaty to show up
Breach of contract is a harder case to make, however; latent defects and code violations are much more straightforward, since all you have to prove is (a) the fault, whereas in a breach-of-contract you have to prove (a) the fault, and (b) the contractual remedy.
So you sue within three years.
Lawyers at several firms said that the volume of condo defect work had doubled in the last year, adding up to dozens of buildings with [Alleged – Ed.] construction problems.
In most cases, the condo owners hire lawyers to add muscle to their complaints, in the hope of getting the necessary work done. In a few instances they have filed suits. Lawyers say that condo owners are reluctant to talk about the defects in their buildings, fearful that publicity will decrease the value of their properties.
A classic lose-lose-lose situation: tell the New York Times your condo is pristine, and some irate owner will fulminate, bringing you even more of the publicity you really would prefer to avoid.
Our external-communications consultant advised this approach
Plus, your comments would be giving fodder to plaintiffs’ lawyers, too.
Water leaks and climate control problems top the list of complaints.
Air is more sluggish than we realize. Circulating it through large complicated buildings is evidently a challenge, because every new building I’ve ever had the pleasure to occupy has always had hot sides, cold sides, and other temperature surprises.
Many of the recently built glass towers are especially prone to temperature issues, because air-conditioning units are too small to combat the punishing summer sun, and heating systems can’t make up for a lack of insulation during the cold months.
They’ve violated Padfield’s law of construction complexity, which posits, as I previously posted, that any engineered system will prove more complex than its builders anticipated.
But lawyers and engineers said that they had also come across buildings with more serious defects that violate the city’s building code. The most common code violation involves inadequate fire-stopping components — building materials that are used to fill empty spaces where fire or smoke can spread between floors and apartments.
Even if your motivation for looking is more contract-inspired than defect-inspired, you have a right to the law’s full protection.
You have to trace the problem to its source
Howard L. Zimmerman, an architect whose firm is checking about 35 new condo buildings for construction problems, said that his workers had found fire-stopping violations in about a third.
Of course, in boom times it’s quite plausible that prospective buyers were not paying as close attention as they could have been. Nevertheless, they should not be obligated to pay attention; they should simply get what the specifications called for.
According to Mr. Zimmerman, the most common problem is found behind the walls of apartments, where, say, no caulking material has been used to seal a two-inch space between a pipe and a concrete wall. That unsealed space, he said, “is where smoke and fire can travel quickly,” and it could also allow smells to float through a building.
Just as water can travel great internal distances through cracks and fissures within a building, air loves to rise, and smell is the one sense we cannot block.
Odor’s highway
“Odor migration has been a tremendous problem, and if you buy a $3 million apartment, you probably don’t want to smell your neighbor’s smoking or the restaurant downstairs.”
Mr. Zimmerman says that the Department of Buildings can miss these kinds of lapses because architects or engineers hired by the sponsor are allowed to vouch for certain aspects of construction.
If they’re certified professionals, then who pays them should be irrelevant; their license and their professional liability insurance should be at risk.
“There was supposed to be somebody on the job who signed off that this was all installed before the walls got covered up,” he said. “As nutty as it sounds, just because you have a certificate of occupancy doesn’t mean you have a building that’s code compliant.”
Based on reps and warranties.
He and real estate lawyers said that even when a condo board discovers building code violations, it is often reluctant to alert city officials because the board then becomes responsible for correcting the problem as well as for paying any fines.
“You bought it, you own it.”
That’s your problem now
James P. Colgate, an assistant commissioner at the Department of Buildings, says that condo boards are not under any obligation to report code violations. But when they do, the department may decide to investigate whether an engineer or architect improperly certified work at the building.
Although the condo association may have a winning cause of action against the developer, builder, or architect, the condo holders have a winning action against their association – and unless recovery can be made against the sponsor, in the end the condo holders will pay for it one way or another.
As for problems like water leaks, Mr. Colgate said that a certificate of occupancy was not the same thing as a guarantee. Such a document “certifies that the building is substantially in compliance with rules governing its construction,” he said, “and even if workmanship in a building may not be superb and you get those kinds of issues, the building might still be in compliance.”
Evidently building code does not require a property to be leak-free – if it did, probably no property anywhere would meet code.
When it becomes clear that a building has problems that go beyond punch-list items — a kitchen drawer, say, that won’t stay shut or a closet door that sticks — the first thing owners should do is hire an engineer.
Or a capital needs assessor.
“You have to get a top-to-bottom assessment of the building — the interior, the exterior, all the systems,” Mr. Sladkus said. “That creates a record and tells the board where things stand.”
The sooner this is done, the better, he added, because it takes away a sponsor’s potential claim that problems were caused by the apartment owners. Depending on the size of the building, an engineering report could cost $10,000 to $50,000.
It’s not cheap – and you get what you pay for.
“Why are you complaining? All your limbs are reattached!”
[Continued tomorrow in Part 2.]
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