Alteration Issues Private Projects Need Board Approval

Alteration Issues

It’s no secret that residents in co-ops or condos can be a fickle bunch, and many times decide to undertake a repair or remodeling project themselves, without going through the proper channels. 

Maybe it’s a new owner who wants to make major changes to his home to make it a better fit; perhaps it’s a long-time resident who buys an adjacent unit and wants to knock down some walls to make one big unit; or an owner could just be sick and tired of his flooring and wants to do something new.

In each of these scenarios, the first step should always be petitioning the board for permission, but often, people get tired of waiting for a response and decide to forge ahead and hire contractors themselves. This can lead to numerous problems.

“In dealing with renovation requests, the board is engaging in a balancing act between the clear benefits of renovation to the risk of the building,” says Bruce Cholst, a partner with the Manhattan law firm of Rosen Livingston & Cholst, LLP. “Risks could be damage, disturbance and the prospect of legal liability.”

Howard L. Zimmerman, AIA, founder and principal of Howard L. Zimmerman Architects, P.C., says each building should have a proper building alteration agreement in place.

“The board lays out what has to be filed; what the contractor qualifications are; what the hours of working are; and whether to file with municipality or not,” he says. “There should be house rules regarding the hours worked and whether weekends are included. What time of night? Whether you can cut through walls and what protections are offered.”

Setting Rules

The objective of the board is they are there to protect the infrastructure of the property, which is why Zimmerman says things such as drilling through a wall and removing sound insulation can be a concern.

“If you’re going to be using a significant amount of electricity, does that suck the power from other buildings in the complex? That’s also a concern,” he says. “Are you going to alter the look of the roof or the façade? That’s a concern.”

"Renovations have to be architecturally consistent, aesthetically consistent," says Wendell A. Smith, a partner with the law firm of Greenbaum Rowe Smith & Davis LLP in Woodbridge. You can’t start moving things like piping around, without permission, or potentially causing harm to the unit’s infrastructure.

Cholst says two things a board can do in course of regulation are devise an alteration policy with the minimal standards required for any project and make an alteration agreement that all residents must sign agreeing to all terms written.

“It should be a living document. Every time the building has an experience that’s not covered specifically by the alteration policy, it should be incorporated and updated,” he says. 

When it comes to the requirements boards should set for shareholders/owners wishing to alter their condos or apartment units, Anne P. Ward, an attorney with the Newark-based law firm of Ehrlich, Gudin, Petriello & Plaza, notes there are two important issues.

“Any work, any alteration, within a unit that has any bearing or will touch upon a common element has to be pre-approved by the board. They need to make sure that the other residents and the property are protected and that there isn’t any damage done or load-bearing walls removed,” says Ward.

In addition, Ward says, “They all have requirements that any work be pre-approved by the board. They want to see the plans, the names of the contractors involved and proof that those contractors are covered by insurance. They also require that the contractor, or owner, obtain whatever permits are required for before, during or after the work.”

So by the time a project is up for review by the board, they should be able to look at every facet of it. Everything should be in place before going to the board for approval. And it may not only be the board that needs to give permission, each municipality in New Jersey has a local building department and local building official, which enforces the state Uniform Construction Code. This code spells out what projects and what types of work need to apply for construction permits, and which don’t.

The Board’s Business?

When it comes to what’s the board’s business and what isn’t, that can change from building to building.

“Every entity will have its own sort of guidelines as to what triggers the review process, but clearly if it’s something that touches on a common element or involves weight bearing or even just getting the workmen into the building property you need to have pre-approval to do that. So the nature of the work will be flagged at the beginning of the process,” says Ward.

So while each board will have its own guidelines as to what is allowed and what isn’t, if a unit owner wants to making minor cosmetic changes, that is generally allowed. 

“If it’s just a cosmetic change, no the owners are entitled to do that. In a condominium they own the condo and fee title and most governing documents specify what belongs to the owner as opposed to what is a common element. A co-op is a little different because a co-op has the title to the entire property and then the owner signs a proprietary lease and has the right to live there almost like a renter but the rights are a bit greater. They’re entitled to do cosmetic changes though,” says Ward.

For cosmetic alterations such as these, Zimmerman notes most people minimize this, but before work is done, it must be determined if it involves plumbing and electricity and that should be the concern of the board.  

“Cosmetic renovations, such as painting and refinishing of floors, needs to go before the board and then they will determine if it needs to be filed or reviewed,” he says. “The emphasis is not that the board is trying to be ‘Big Brother’ and get involved in your life; they are there to protect the integrity of the building, the structure and the infrastructure.”

Cholst notes that even for small things, the board needs to get involved at the very beginning and be aware of anything that’s being done. Anything that might even touch upon a common element of the building, for example, even a kitchen or bathroom renovation, should get board approval. One wrong move on the part of the contractor could result in the loss of water or gas or even electricity to the entire building, so being sure the board is brought in on the process is one way to prevent a headache down the road.

“It may not be a structural risk to the building but the board needs to know that it is happening and the contractor is licensed and insured,” he says. “A board needs to be aware of any modification so if there is a problem, it can act.”

Time Matters

When contractors are coming into a building, besides a proper notification of the residents, arrangements in accordance with the rules must usually be made at least 48 hours in advance to reserve the service elevator or using public other areas. 

Traditionally, work may only be scheduled Monday through Friday between the hours of 9 a.m. and 5 p.m., with no work allowed on weekends or holidays, unless the state of emergency or extreme necessity.

“Time for tenant quiet enjoyment has to be respected,” Zimmerman says. “Sometimes, they allow quiet work to be done on Saturdays, like painting.”

Rules of notification of neighbors, shutting down water/gas/electricity or blocking the common areas are also very important part of the procedure.

A lot of alteration agreements stipulate the exact days a job can be done and it’s a board position to prevent a 3-month project from extending to a 6-month project.  

“It reflects quality of life and compels people to have a sense of urgency to get their projects done,” Zimmerman says. “It’s important to set the standards for qualified contractors.”

Making a Decision

Specific rules for every type of alteration usually exist, be it plumbing, window replacement, electrical work etc. Exactly what is required should be public knowledge and easily found out. This is a situation where boards want as much transparency as possible so as to avoid conflict. They rest of the building should be privy to the alteration rules and any changes that might occur to them.

“Usually the rules and regulations will provide that. They also take into account that you can’t get approval unless you’ve got the contractor and the permits and all that stuff. You’ve got to give the board enough time to review it, so as far in advance as possible,” says Ward.

In addition to the signed alteration agreement, all residents should include plans, drawings and a narrative description of the job so the board has all the facts in front of them for review. They should also have proof of insurance from their contractor.

“Board members sometimes can’t understand the plans, so the description goes a long way to helping board members review what needs to be done,” Cholst. “Typically, a building has an architect on retainer to review these and evaluate them to see if it’s compliant with alteration policy and if there are any risks.”

“Safety, safety is first and foremost. Anything that poses any sort of risk to the soundness of the property, safety would be the first consideration,” says Ward.

A board has the right to turn down a resident’s request for alterations or repairs on the ground of any legitimate interest of the corporation. Common reasons include violation of the alteration agreement, inconsistency with house rules or work not aesthetically consistent with the building or the homeowner’s association. 

While the board has an absolute right to say no if it acts within a standard 60-day time frame, Cholst says a big “don’t” is in selective enforcement. 

“You have to be uniform and all requirements should be the same for all alterations. You can’t just refuse for no good reason,” he says. “A board doesn’t have a blanket check; they cannot unreasonably reject or delay a renovation. If you’ve approved one alteration, you can’t turn down a similar one.”

Cholst says not to be too quick to say no and if there is some sort of risk, the board and architect should work with the resident on a modification that would make the project feasible.

Each board has their own rules. Some buildings only allow two alterations at one time. Some boards only allow work in the summer.

“Vertical construction can change the operations of the building. Construction can impact maintenance, garbage, housekeeping operations, deliveries, etc.,” Zimmerman says. “The review process is at least a couple of months in advance of actual construction. Boards need time to review and put it in the queue with other renovations that have been scheduled.” 

From the board’s perspective, they have a building association to run, while to residents, it can be the most important thing in their lives. When all is considered in advance, it minimizes last minute panic and stress for the resident and board alike.

Keith Loria is a freelance writer for The New Jersey Cooperator. Senior Editor Hannah Fons and staff writer John Zurz contributed to this article.

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