The legal battle is being waged in a 1920s building on Manhattan's Upper East Side. After a physical survey of the entire property in 2003, the 48-unit co-op's architect advised the board that the 80-year-old copper-and-brass water lines were in a "delicate" condition. When a couple on the sixth floor submitted renovation plans to the board in November 2005, calling for a new bathroom to be installed directly over living space in the apartments below, the board had two fears: that modifications to the "delicate" water lines would cause catastrophic leaks and that approving the plans would set a potentially dangerous precedent.

The co-op's proprietary lease states that approval for renovations may not be "unreasonably withheld or delayed," so the board turned to its attorney, architect and manager for their opinions. Based on that and an internal debate, the board adopted a policy on February 6, 2006, forbidding wet-over-dry construction. The board suggested that the couple on the sixth floor submit a revised renovation plan minus the new bathroom. Instead, the couple sued the corporation.

"We were particularly concerned that construction of a whole new plumbing network would create a source of water leakage where none previously existed," said board member Rosemary Shmavonian in an affidavit filed in court. "Moreover, we were concerned that the areas most directly exposed to this new source of water were the 'living spaces' in the five 'A-line' apartments [underneath]."

Bruce Cholst, a veteran co-op and condo attorney who represents the co-op's insurer, contends, "The courts have construed that boards must have a justifiable concern when they deny or delay an alteration request. The issue is whether the board's position is plausible and justifiable. Our contention is that there are valid reasons for turning down this request."

Risk vs. Flexibility

While not unanimous on the issue, most managers advise boards that allowing wet-over-dry construction is an unnecessary and unwise risk. But some boards decide, nonetheless, that it's a risk worth taking. Frederick Rudd, president of Rudd Realty, advises such boards to include a policy in the alteration agreement that should be reviewed and, if necessary, modified annually.

Such policies should require specific safeguards. "For example," Rudd says, "if someone expands the bathroom so the addition goes over the living room in the downstairs apartment, there must be safeguards that meet specific, rigorous criteria, such as water catch pans with alarms that shut off the water when a leak occurs and waterproof membranes in the floor to prevent leaks."

Wet-over-dry construction "is very complex," agrees architect Oswald Bertolini of Bertolini Architectural Works. "Some people are completely against it and some people think it's no big deal. My feeling is there's no need to say a blanket 'no' across the board. If you're willing to do everything you can to prevent a disaster — structural damage or a flood — you're going to be okay."

For bathroom and kitchen appliances that use large amounts of water or cause vibrations, Bertolini recommends sensors that detect leaks and trigger an alarm, along with pans to catch leaking water, and thick waterproofing under a new bathroom floor.

But Ivan Mrakovcic, architect for the Upper East Side co-op now in court, argued in an affidavit that there's no such thing as fail-safe precautions: "Permitting wet-over-dry construction increases the prospect of developing vertical leaks. Waterproofing systems are not foolproof and do not eliminate the prospect of such leaks. Thus, risk-averse boards are justified in prohibiting wet-over-dry construction."

A Rising Tide

Whatever boards decide to do, everyone agrees that requests for wet-over-dry construction are on the rise – and likely to become even more common in the future. "Renovations have been getting much more intricate over the past several years," says Cholst. "Because people are paying so much for apartments, they want to create dream homes, and they have the capital to do it. They're creating ever- more elaborate interior designs, with more bathrooms and larger kitchens."

His advice to co-ops? "A savvy board will adopt a building-wide policy of no wet-over-dry construction — and then proactively explain the underlying rationale to shareholders. That way, the shareholders are much more likely to accept, albeit grudgingly, the board's decision."

Bertolini counters that some old buildings with aging and delicate plumbing, like the embattled Upper East Side co-op, might be wise to bite the bullet and pay to replace all the water lines. "In the long run, it might be better for the co-op," he says. "The building would be more attractive to people with deep pockets, and the value of everyone's investment would go up."

Clearly, there's nothing cut-and-dried about wet-over-dry.

Adapted from Habitat March 2008. For the complete article and more, join our Archive >>