Q: My Manhattan co-op building somehow allowed a shareholder three floors above me to install HVAC units with drainage tubes that go through the exterior wall. A fluid purge, like turning on a faucet, periodically flows onto my private garden patio just outside my door. I objected in person to the board president at the time of installation, filed written complaints to the board, and contacted 311. The board is not responding. Can the board really allow this, and is it reasonable to expect an attorney to resolve the issue in my favor?
A: It sounds like this HVAC system is not functioning properly, but approach the situation in a neighborly way before you file any lawsuit, which should be a last resort.
Start by documenting the problem with pictures and videos. Then have a friendly conversation with the neighbor, making them aware of the impact the HVAC operation is having on you.
When knocking on their door, a peacemaker gift such as cookies or a bottle of wine may help defuse a potentially hostile encounter, said Tina Larsson, CEO of the Folson Group, a business consultant for condo and co-op buildings. “Be nonthreatening at the start, with something like ‘You are probably not aware, but … ,’ and explain the situation,” Ms. Larsson said.
Legal action against the board would be expensive and difficult. Boards are protected by the business judgment rule, which gives them a defense in court for most of their actions, unless the actions were made in bad faith or were against the law. “It’s an awfully steep climb to overcome that,” said Bruce A. Cholst, a partner with Herrick.
You’d have to spend a lot of money to prove negligence on the part of the co-op, and even then it might not work, he said.
If your efforts to work with your neighbor fail, you might have to hire a lawyer to pursue legal action against them, either because of the contractor’s faulty installation or the neighbor’s improper operation of the system. This claim is much more direct and easily provable, Mr. Cholst said.
Before any lawsuit, send a letter written by a lawyer. This could startle the neighbor, but it will indicate that you are serious. The letter should demand that the neighbor fix the problem, and it should allude to the possibility of monetary damages and a court order to repair the HVAC system. In addition, suggest that the neighbor forward the letter to their homeowner’s insurance carrier.
“If you can get the insurance company to pay, then it will resolve much more quickly,” Mr. Cholst said.
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