It was, perhaps, the oddest meeting I ever attended in my 20-odd years of serving on my co-op board. As president, I had called the session because we had an apparent mold problem in our 21-unit Manhattan building. Since the gathering was called on short notice, three of the seven members joined us remotely – which meant we were directing our comments to those we could see and those we couldn’t see, who were just disembodied voices coming from the speakers of two open cellphones sitting on the table.
“We have to deal with this f---ing problem,” said a loud voice, sounding hollow as it boomed from one of the phones.
“We talked to a couple of lawyers,” began one of the directors, who was interrupted by the first speaker: “Why are you talking to f---ing lawyers? Are you planning to sue someone?”
This board member, whom we’ll call “BM,” or Bad Mouth, because of his habit of inserting expletives into his conversation, was the main reason for our get-together. He had recently moved to Boston and was trying to sublet his two-bedroom apartment. He had a renter lined up, but, upon finding mold in the apartment, she had abruptly pulled out.
Now, BM was on the other end of the line saying, “The mold has made my apartment uninhabitable,” adding that frequent roof leaks into his top-floor unit had caused the problem. “It is my expectation that the co-op will promptly remediate the problem and make my apartment habitable again,” he said, insisting that the apartment would remain vacant until the mold was completely removed. He added that he would be withholding his maintenance payments until the problem was fixed.
The super had already cleaned out the mold on the ceiling where the leaks had been – that was clearly the co-op’s responsibility. But we wondered about the window in one of the bedrooms. The super told us that BM had improperly installed an air-conditioner in the window and it had dripped not outside the window but onto the windowsill. The sill was clearly water-damaged, and BM had put a loose board on the sill to cover up the damage. Even more significantly, he had been informed of the mold by the super several times before it was discovered by the renter. And he had ignored the warnings.
So, what is a board to do in such a situation?
“They were right to go in and remediate the mold immediately,” says attorney Tara Snow, a partner at Novitt, Sahr & Snow who is not involved in the case. “Worry about who’s paying for it later. After it’s remediated, bring in a professional to test the air quality. There’s mold everywhere – but all mold is not equal. There’s mold in the air that you breathe, but it’s a question of whether this is toxic mold.”
As for liability, Snow observes: “If the damage was caused by the negligence of the shareholder improperly installing the air-conditioning unit, the board can bill him.”
And what about withholding the maintenance? “A bad idea,” says an attorney not affiliated with the building. “If he tries it, sue his ass.”
Not to put too fine a point on it.