Require Professional Installation of A/Cs to Avoid Damage, Liability
In late September, a Vietnam veteran was sitting with his dog outside his building on Second Avenue in the East Village when a 45-pound air conditioner fell from a sixth-floor window. The air conditioner bounced off of the first-floor commercial tenant's awning and landed on his head. After nearly dying during surgery, the injured veteran filed a multimillion-dollar lawsuit against the building owner.
According to a copy of the lawsuit, the veteran “received emergency treatment for a skull fracture, concussion, and other serious injuries to his head,” which caused “permanent brain damage.” While the veteran was still in his hospital bed, the building's owner allegedly made several unwelcome attempts to visit him, despite the veteran's lawyer ordering the owner and his insurance people to leave his client alone. “Initially these unannounced, uninvited, unauthorized ‘visits’ were when the plaintiff was still in a coma,” the lawsuit says.
The owner faces up to a $25,000 fine at a Buildings Department hearing to be held soon. And the veteran is seeking $21 million in damages for the owner's conduct, including “harassment” and “dangerously and improperly” installing the air conditioner unit without brackets.
As this case illustrates, an owner should always have professional installers to install air conditioning units in apartments. Sometimes tenants will install air conditioning units on their own. In these cases, you should require them to use professional installers as well. Window units that are improperly installed by a tenant can damage your property. They can also cause serious and costly accidents, which you—not your tenant—may have to pay for.
The following are some of the risks you run when you let someone other than a professional install an air conditioner in one of your building's windows. We will also tell you how you can require the use of a professional installer in the lease.
Accidental Falls
Someone who doesn't know what he's doing can easily drop an air conditioner out a window while trying to install it, says Joe Kay, owner of Dynamic Appliances and a New York air conditioner specialist. Also, if somebody accidentally opens a window that has an air conditioner in it, the air conditioner can easily fall out.
Many air conditioner manufacturers say that it's fine to put a unit into a window without support. They expect that when the window is closed, the frame will support the weight of the unit. “But that is not always true. Even when an air conditioner is supported with brackets and screws, if it isn't well secured to the window frame or amply supported from beneath, it may still fall out of the window,” says Kay.
If an air conditioner falls out and injures someone, you could be held liable, even though you may not have been directly involved in the installation. The victim will argue that you negligently contributed to the accident because you were aware of the installation, but permitted it to be done without professional supervision or the necessary precautions, such as supporting braces or brackets.
In one case, a pedestrian suffered an injury when an air conditioner fell from a window of the tenant's apartment and struck him. In the lawsuit, he alleged that the owner permitted the air conditioner to be installed negligently and failed to take action to prevent it from falling. The tenant testified that a friend, who was not an employee of the owner, installed the air conditioner. And in the opinion of a testifying civil engineer, the air conditioner had not been adequately affixed, braced, or supported, which lent further support to the claim that the property was not maintained in a reasonably safe condition [Delosangeles v. AAE Inc., May 2007].
Pulled-Out Windows
Without braces, brackets, metal bars, or some other type of support for the air conditioner, the window becomes the sole support. In this situation, the window must be extremely strong to support the weight. According to Kay, older wood windows and metal-frame replacement windows won't support that weight. Kay has seen cases where the weight of an unsupported window air conditioner installed in a metal-frame window actually pulled out the entire window, frame and all.
Damage During Installation
A tenant who installs a window unit on his own is likely to take advantage of whatever support is available. For example, he may screw brackets directly into your window frame or bolt brackets into the exterior brick wall, or he may hack out the bottom part of your metal replacement window so that the air conditioner will “sit” right.
Leaks and Water Damage
All air conditioners must be pitched, or tilted, slightly downward on the outside. This causes the water that the unit accumulates to flow back toward the condenser at the rear of the air conditioner. The condenser then evaporates the water. When an air conditioner is tilted properly, at least 95 percent of the water in the unit should evaporate. According to Kay, there will always be some leaking outside, especially on humid days, but water should not be pouring out.
If a unit is pitched too steeply, too much water will gather at the condenser and not all of it will evaporate. The excess will leak down the side of your building, which can cause stains, bulging, and cracking in the outside wall.
If the air conditioner is tilted upward on the outside, water will flow into the apartment. The resulting water could leak through to the floor below, damaging the ceiling.
Require Professional Installers
To avoid damage and injury, you should not let tenants install air conditioners on their own. To get by this rule, the tenants may ask your maintenance staff to install the air conditioner units instead. This is a bad idea.
Legally, once a staff member undertakes such a task, he's expected to do it right. Assuming the staff member isn't properly trained, one mistake and you could be liable for your employee's negligence. This is not the case when an independent contractor does the job. If the contractor makes a careless mistake, he's the one who is legally responsible.
If you allow tenants to install their own window units, you should have them hire the services of an air conditioning professional. You can add a clause to your lease that calls for professional installation. Show the following language to your attorney before using it in your leases.
Model Language
Tenant shall not install an air conditioning unit without first obtaining Owner's express written permission. Owner's permission, if granted, may be conditioned on, among other things, Tenant's obtaining and bearing the cost of professional installation of the air conditioner by a competent independent contractor specially trained in the proper installation of air conditioning units.