Q&A: I Don’t Do Windows

Q I seem to be in the minority on the board upon which I am a director and chair of the finance committee, because I think that since shareholders are lessees/renters and the corporation is the lessor/landlord, that the corporation should bear the responsibility for the maintenance and repair or replacement of the entire facade of the building, which would include the windows. Am l correct?

—Well-Maintained in Winnetka

A “From your question, I take it that you are in a cooperative form of ownership. In such circumstances, typically the real estate/building is owned by an entity (often a corporation or possibly a trust) and the members hold both an ownership interest in the entity (either shares of stock, certificates of membership or beneficial interest) and a proprietary lease for the apartment “owned” and occupied by them,” says Chicago-based attorney Michael C. Kim. “The proprietary lease creates a type of landlord/tenant relationship between the cooperative and the individual member.

“As to the responsibility for maintenance, repair and replacement of the facade of the building and the exterior windows, that responsibility should be addressed by the terms of the proprietary lease. While the tenant/lessee usually is responsible only for interior features, appliances, decorating and the like, the tenant does not normally have responsibility for structural or capital items such as the façade or windows.

“Nonetheless, if the proprietary lease does assign responsibility for window maintenance, repair and replacement to the individual tenant, then the tenant would be bound accordingly. Responsibility for 'maintenance' of windows could be something as simple as cleaning (interior surfaces) or lubrication and possibly “minor” repairs; however, major repairs or replacement is typically the responsibility of the landlord unless the need was caused by negligence or wrongful act of the tenant or a person for whom the tenant is responsible. In the 'normal' landlord/tenant relationship, a tenant would not be responsible for repairs and replacements which would have a useful life beyond the generally short-term of his/her lease, since such benefit would ultimately inure more to the landlord than to the tenant in those situations.

“Of course, in a cooperative setting, the landlord/tenant relationship is modeled by the potential long-term interest that a member has under the proprietary lease (as opposed to the generally perceived transitory nature of “normal” landlord/tenant leases). In conclusion, the particular terms of the proprietary lease would control the situation; if there is an ambiguity in the lease and assuming no wrongful conduct on the part of the tenant caused the need for repair or replacement, then the outcome will likely be that the landlord/corporation will be responsible for such repairs and replacements.”