Right to roofdeck

This issue came up at a meeting I attended with Stu Saft, one of the most famous condo lawyers in New York State. Among other things, he pushed for and got the last 2 little items added to New York's Condominium Act.

Some condos are selling off parts of the roof to unit owners to make money, just as some co-ops are doing. The problem is, the common elements are held by unit owners as tenants-in-common, and Stu's opinion was, there's just no way a condo board can do something like that.

If you have the chops to write your own letter to the managing agent and board, you certainly could do this, but for most people the sensible thing to do is to pay a lawyer to write a letter pointing out that this is illegal and that you want access to your property, aka that unit owner's roof deck (or whatever it is you want). I'm thinking the building will have to reimburse the resident for work on the roof deck, but ask the lawyer. BTW you want to hire a lawyer who is an expert on condo/co-op law, not just any old lawyer. This organization can help: https://www.cnyc.com/

The condo consists of the units themselves, Limited Common Elements which're owned jointly by all the units but for exclusive use of one or more units, and General Common Elements which're owned jointly by all the units.

Your your condo declaration and any amendments. That'll define the precise extent of the all those elements.

The declaration will also say whether how a General Common Element can become a Limited Common Element.

Usually the condo board will just license some of the General Common Elements for the exclusive use of one owner. E.g., hallway space when two or more units are combined.

If neither of those things was done, then the other seven owners can renege on the informal understanding that owner #8 has exclusive use. As Flutistic said, the seven of you need to agree to do that. Otherwise you'll be paying for the fight by yourself. If the board doesn't care who bakes on the roof, they'll just put an alarm-will-sound lock on the door and give a key to #8.

Oops, "Your your" should be "Read your".

How do you share the maintenance of the roof and determine when replacement is necessary? If only one person is using the roof as outdoor space, I would assume that person is contributing to the wear and tear on the roof. I would not want to split the cost of replacing the roof equally among all the owners.

But NWT and Flutistic are correct in having your review the Condo's Declaration. Use of/access to the roof should be covered there.

I overlooked the fact that this is only an 8 unit condo....you are all in each other's faces. Can you call a special meeting to discuss with all 8 owners? If so I'd do that before getting my lawyer involved.

I looked at the condo declaration for about an hour and could not find anything that mentioned the roof. I think this is because when the condo was first established there was no roof deck per se for leisure. It was just the roof. What happened was a long time ago (before the building was even established as a condo I believe) there was a leak on the roof and the top floor resident, who is still there, said he would pay to fix the roof and assume all responsibility for it going forward. This was just recorded in the meeting minutes. So I guess it is still a common element, especially since I don't need to go through his apartment to get to the roof? I would gladly reimburse him for the repairs he made to the roof, basic installation of wood on the floors to make it a roof deck, etc. What he did is nothing in exchange for being gifted a roof deck that is worth 100x more than what he put into it.

This happened in my building, too, and I get the sense it's not that unusual for small building conversions in New York in the 80s/early 90s. New York was different then.

In my building, one of the top floor tenants built roof access and an entire roof deck without permission or permits. The guy was a lawyer, and the building had no money to sue him, so the situation was unresolved for years until he went to sell. At that point, the co-op blocked the same. Eventually, the co-op received a paltry payment for the roof access; the unit was assigned a ridiculously and arbitrarily small number of shares for the roof; and the construction was legalized. The co-op still didn't have any money to hire a lawyer, so it was an awful deal, but it was a deal.

Keep in mind, if you do choose to take this on, you could end up in litigation, which in an 8-unit building, makes all of your apartments unsellable. You could also deplete your building reserves. At the same time, you could end up making enemies with your neighbor(s) and be stuck in a poisonous situation that's hard to escape. Before you do anything, I'd have dinner or drinks with a few of your neighbors, one on one, and see how they feel about the roof deck and the person who owns the unit. If no one is up in arms, I'd drop it.

P.S., roof deck construction is much more complicated and expensive than you may think. Does the building have reserves to repay this guy for the construction he did, with compound interest over how many years he's had it?
P.P.S., you may end up discovering that the entire deck is illegal, that the roof can't support the city weight load requirements, and no one can use it.

The condo declaration will describe the units, and define what are common elements and limited common elements. If at a subsequent board meeting he was awarded the exclusive right to use common elements or limited common elements, he could have title to that property only by way of an amendment to the condo declaration, which I doubt happened and requires consent of the unit owners, typically a super majority or unanimous consent. At best, he might have a license to use the area, but one that is revocable. You need to determine if you are alone among your unit owners in wishing to have access to this space (i.e., to revoke or terminate the license). We have a common roofdeck in a similarly small condo that no one uses besides me, and my fellow unit owners likely would be happy to give that up if someone paid to maintain the roof, including the +/- $40K we paid for a new roof few years ago on top of the costs of repairs to the unit below from the leak that led to the new roof.

Unless the other people in the building are really bad business people, I don't know why we would give him the deck just for maintaining it. It has a value of at least 800K. We should at this point, I think, see if the owner of the top floor unit wants to buy the deck. I looked through the condo declaration and could not find anything about the roof being a common element or a limited common element for the top floor. Do the condo declarations get amended? Is there a way to find these?

Amendments will be on ACRIS along with the original Declaration.

The Common Elements are described in Article 7 or so. E.g., "include but not limited to", so may not include the word "roof".

I love this thread so much.

How are you coming up with the value of $800k? How big is the space? I purchased roof space from my co-op for $100 per square foot. The construction was obscenely expensive, involving cranes, steel beams, etc. It was significantly more expensive than any interior construction. When I first approached the building about buying the remaining roof space, there were people with dollar signs in their eyes, thinking $500-1000 per square foot. But it made no economic sense to purchase the roof space for anything more than $100, and I'm not even sure $100 made sense. (That said, this roof space was inaccessible to any other unit and could never be made accessible to any other unit, so short of installing solar panels, there's nothing the building could have done other than sell it to me.)

Additionally, it seems to me that the condo board and this person had what they both thought was a deal and probably should still be considered a gentleman's agreement for at least as long as the person lives there. It's true that the condo board may have overreached, and also true that both parties should have consulted lawyers and had proper documentation. The condo board is as much at fault as the roof deck occupant, though, and isn't likely to get an automatic, scot-free "do over."

I just guessed 800K, but whatever the value, it is not cheap, and it would add value to my property when I decide to sell. It's not necessary to go through his property to get to the deck either, otherwise of course this would be completely different. The current "occupant" of the deck cannot even access from his apt, but has to take the common entry like the other units in the building.

Before we can assess the $800k, we also need to know what neighborhood this is in.

This is Tribeca. The 800K was just my guess, but is irrelevant to me, as it is not cheap.

Notwithstanding LAD's experience, $800K might be very low, especially if the building has available air rights. If you are going to sell, make sure you know what you are selling before you do so. But first, why don't you find the minutes of that board meeting, and see what was agreed to. Either way, if you are alone in your building in desiring to use and pay to maintain the roof, then you will not get anywhere (plus, if the roof has not been replaced in 25 years, it is probably due for a very expensive overhaul and your building may be taking it back at just the wrong time). Plus, given that the condo presumably still owns the roof, the fact that they let someone use it will not have one iota of difference in the value of your unit. When I bought my condo, the building let one unitholder -- the only one with children -- put a kiddie pool on the roof. So I guess we too "gave" the roof to one of the unit owners, until their kid outgrew the pool.

Please remember that a condominium and a co-op are very different situations. Condominiums are subject to New York's truly pitiful Condominium Act, whereas co-ops mostly get governed under Business Corporation Law (BCL).

So in addition to reading the declaration, read the Condominium Act and see if it talks about common elements. I just can't remember right now and I have a terminally sick dog at home so I am sleep deprived. I recently saw a condo case, it was 2015 I think, where the judge talked at length about condo common elements and how they are held as tenants in common. I think I found that in Google scholar while looking up something else.

But gosh, TriBeCa? I thought we were talking Bed Sty or something. Get thyself to a lawyer and to hell with the neighbors, there is too too much money at stake here in my view to horse around.

Additional question, you refer to the top floor resident as a "tenant". Is this a renter, or an owner?

Everyone is an owner.

When you made your purchase, what was your understanding - explicit or not - about the roof deck?

I never even knew about the roofdeck. The top floor tenant has just been secretly using it all these years. Basically he just decided to build a deck on the top. The condo declaration does not even mention that there is a roofdeck.

Holy cow.

I don't see the issue. The guy fixed up the roof. It had no value before, wasn't even noted in the docs and you weren't even aware of it when you bought (and by extension didn't believe you were paying for it). Your valuation of course takes into account 25 years of appreciation in TriBeCa, but seems to neglect 25 years of value of the repairs he created and ongoing maintenance. Whatever value you think it is, minus whatever value of his repairs over 25 years, divided by 8 units, and then the hassle of this guy in your own building hating you ...

He should pay for the roofdeck or the condo can sell it to him. Or it can become communal. I think he is lucky that he has gotten a private roofdeck for so long....

If this tenant starts construction, I would demand he show proof of ownership. He shouldn't be "fixing up the roof" on his own. This has to be done by professional to maintain the integrity of your building.

A roof only lasts about 20 years before it has to be replaced (along with the parapets). I doubt he's going to pay for that.

I would demand he show something in writing that gives him ownership or rights to the space. I doubt he has anything. He won't want it to be use communally because he'll take the brunt of the noise over his head when it's in use.

Also, your board has to review any plans for alterations to the roof. They should be passed on to an engineer.

I lived in a condo where there were 10 private roof top terraces and 1 public terrace due to "set backs" of the upper floors. EVERY change had to be approved by the Board after it was reviewed by an engineer, especially when plants and awnings were added.

Demand, demand, demand. Huff and Puff and turn red in your face.
He's not going to pay for it. So now what are YOU going to DO?

Is access to the roof under lock and key? Otherwise, what's to stop you or anyone else from entering the roof space?

Well Simon already knows what to do. He just needs to eat his Wheaties and go do it. Also, there are mediation services available for NYC co-ops and condos, I would call them and see how that works. I doubt very much that the condo can simply sell the roof deck to this one owner, by the way; don't assume so. This is not a co-op, this is a condo. And Jelj makes a terrific point about roof maintenance. I have one kinda off-the-wall concern about all of this.....adverse possession. Now wouldn't that be hilarious? Anyway get legal help, you can certainly afford to, and get this fixed so when you go to sell, some smart attorney doesn't have to advise your buyers to walk away.

The condo could've licensed the use of the roof to #8. The condo could not have sold a common element to anybody.

The condo declaration and by-laws always specify that any crap a unit owner builds on common elements or limited common elements is subject to removal for repair of the roof or terrace or whatever. All the condo has to do is tear the thing off and charge #8 for it. The condo board does have to want to, though.

25 years ago isn't ancient history. Even a half-assed 8-unit condo would have at least one owner with a brain in her head. One who uses different words for different things.

Here's an interesting case where one owner built a deck on the roof: http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008APR/3001165362007001SCIV.pdf

That roof, at 613 E 11 St., is still deck-free.

Thanks NWT for that great case! So much good stuff in there, including the fact that one should press for a VOTE at an condo association meeting, and get the sect'y to write same in the minutes.

The decision reminded me of something else I should have thought of, duh on me---no permit for this creation? Is it elaborate enough that a DOB permit is required, do you think? If so you could complain to the DOB, it's easy and anonymous (but not in an 8 unit building)

Here's another one. Go figure, it's from M at Beekman, where they've got Charlie on the first floor, with his 50 SE threads, and now this woman in a penthouse. It's my favorite judge, saying to the penthouse lady "STFU, you have unclean hands." https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=NnpfIFWh5iT3MArq7OOssA==&system=prod

Decks on roofs are great money-makers for lawyers, as one is so likely to damage the other.

Nothing is stopping me from going to the roof as I don't need to go through the PH apartment get there and no key is required, but the PH apartment believes it is for their exclusive use.

So haul your chair and table and umbrella up there, and use it.

I can but I don't want hostility from the PH occupant, and I want to be able to advertise that I have a deck when I sell

Ah yes, NWT, a good atty knows the law but a great atty knows the judge

SimonHHH: You have to keep your emotions out of this. A roof deck is an extremely valuable piece of property. Either the PH resident has legal proof that it is his or he doesn't. Once you've raised this question, even just in your own mind, you're already feeling resentment towards this resident. Since the "ownership" of the roof affects the value of your apartment and the added value of building amenities, you have to keep that foremost in your mind.
In my building, we have similar apartments with no terraces, 2 terraces, and a huge roof deck. The spread on the actual sales among the 3 was well over 1 million dollars.

I had a relative who rented the back half of the ground floor plus the garden in a brownstone. The new owner threw construction debris out of the windows of upper floor apartment into her garden. Apparently the former owner claimed she was not renting the space; she was maintaining it because the only access to the backyard was through her apartment. Her lease clearly showed that she had exclusive use of the garden as part of her rent. Her lawyer took care of this immediately and the new owner had to pay for damages to her garden. They also had to haul away the construction debris in the garden by hoisting it through the parlor floor apartment rather than her apartment .

Your Board should have the roof, parapets, façade, etc. inspected for preventive maintenance on the building. They HAVE TO review and approve any plans to the roof since any changes to it affect the whole building. Things are going to become even uglier if the resident puts in a roof deck without the proper approval.

But those're same-floor roof decks, where you walk right out from your own living room.

The value difference between having and not having a common roof deck, where you have to leave your apartment, take the elevator to the top floor, then climb a flight of stairs, is probably less than the OP imagines. Then there're the other owners lying in wait up there, wanting to be engaged with....

Exactly, IRL is no fun.

It's a condo, not a sorority. I'm with jelj.

See the latest NYT article on the value of outdoor space:

http://www.nytimes.com/2015/08/30/realestate/finding-a-little-greenery-in-new-york-for-500000-or-less.html