Case Notes: Whose Terrace Is It, Anyway?

The Plaintiffs' Claims

The board moved to dismiss all of the Richstone claims. Turning first to the breach of contract claim, the board asserted that the condominium's declaration and bylaws allowed it to access the terrace to make repairs. The bylaws state that the board has the power and duty "for the necessary services, operation, care, upkeep, and maintenance of the common elements." The court looked to the declaration for definitions, finding that the term "common elements" included limited common elements — i.e., terraces or balconies to which there is direct access from the interior of a unit. The court also looked at the building description, which described the terrace as being exclusive to the Richstone apartment.  

The court concluded that the board did not breach any contract with the Richstones and that, based on the declaration and bylaws, the board had the right to use the terrace to make repairs. Indeed, it was the board's duty to effectuate repairs. The court next explained that to prevail on a claim of trespass, the plaintiff must establish intentional entry onto the "land of another without justification or permission, or a refusal to leave after permission has been granted but thereafter withdrawn." Again looking at the declaration — which states that a unit may include a balcony or terrace — the court initially concluded that the trespass claim should not be dismissed.

On a reargument of the motion, however, the court reversed itself. It concluded that the condominium's bylaws required the Richstones to give access to the terrace to allow the board to perform necessary repairs. The board's decision to perform these repairs was made within its business judgment. The repairs were, in fact, necessary — there were leaks into other units. The board had its construction experts inspect the roof and gave the Richstones notice that it would begin work. There was no "trespass" and this claim was dismissed.

The Richstones were left with their nuisance claim, which required the plaintiff to establish interference, which is substantial in nature and contains a person's right to use and enjoy land. The interference must be intentional and unreasonable and caused by the defendant's actions or failure to act. It is a pattern of conduct. Here, the plaintiffs argued that the board had limited permission to install the rigging and that it intentionally left it installed beyond the agreed-upon date. As evidence of nuisance, according to the Richstones, the board removed the rigging after they began this action. The court found, however, that there was no claim the rigging was unreasonable. This claim was also dismissed.

The Board's Claims

The board demanded that the Richstones remove the wood terrace. An engineer retained by the board stated that the wood terrace was illegal, an immediate hazard, and built without proper permits from the Department of Buildings (DOB). The Richstones had their own engineer's report, which stated that the terrace could be salvaged and that all that was required was an inspection and filing with the DOB.

The court initially decided that because, based solely on papers, there were issues of fact, it could not determine whether the wood terrace was in violation of the condominium's declaration and bylaws. It appears that this decision was based, at least in part, on the representations made by the Richstones' counsel — that the deck was damaged by the board's contractor, and that the Richstones and their insurer decided to remove the deck so it could be replaced after the board completed its work.

In its subsequent decision, the court noted — notwithstanding the above representations — that the Richstones did not remove the deck. Thus, when it revisited the issue, the court noted that the Richstones did not get DOB permits and that they failed to ask the board's permission to install the wood terrace in the first place and, accordingly, issued an order requiring the Richstones to remove the wood terrace within 30 days. The order also provided that if the Richstones failed to do so, the board could remove the wood terrace at the Richstones' expense, after giving the Richstones 15 days notice that it intended to do so. The court also looked at the issue of whether the wood terrace was in violation of the bylaws, and concluded that it was. The bylaws require that any unit-owner who intends to make a "structural addition, alteration, or improvement" to the unit, or a "structural addition, alteration, or improvement" that affects the exterior of the building, must receive the board's prior written consent. If the board does not respond within 30 days of a request, the request is deemed granted. However, any application to the DOB must be executed by the board.

The Richstones conceded they had not obtained DOB permits and other necessary paperwork. Consequently, the court found that the wood terrace was constructed in violation of the bylaws and awarded judgment to the board.

Finally, the court addressed the issue of attorneys' fees. According to the bylaws, money, costs, and expenses incurred by the board "in connection with the abatement, enjoinment, removal, or cure of any violation, breach, or default committed by a unit-owner . . ." shall be paid by the unit-owner. The court was succinct: the plaintiffs violated the bylaws and the board was entitled to costs and attorneys' fees in curing the plaintiffs' breach. The issue was sent to a referee to determine the sum owed and report to the court.

The Takeaway

Outdoor space — terraces — are a very valuable amenity, especially in an urban setting. We all know that New Yorkers lucky enough to have terraces are not happy when their board requires access to perform alterations, particularly if access is required during the summer months. Or when there are delays — so that a request for two months of access becomes three months, then five months, and so on.

And let's face it, boards probably aren't happy about having to use an apartment owner's terrace as a staging area. But under the bylaws of many condominiums, the board has the right to use the terrace for building-wide repairs and, assuming that the work is being performed in an appropriate and timely manner, there is little a unit-owner can do about it. This means that, while it has the right to install a rig blocking a terrace, a board shouldn't simply leave it up for a year while nothing is done.

In this case, although the court does not go into the background leading to the litigation, it appears that the board and plaintiffs agreed that the equipment would be removed by March 31, but that the board's construction professionals required use of the rig beyond that date. It is not clear why the board would have agreed to an end-date (if in fact it did agree to one), and in that regard this may serve as a reminder. If an apartment owner wants a final date by which equipment must be moved from a terrace, boards and owners must know that there may be construction delays, because of

•  weather

•  unforeseen circumstances (contractors find something they didn't expect when they open a wall or floor)

•  government agency delays

•  lack of diligence by a contractor

The board must look at each of these issues carefully if they arise but there should be an acknowledgement between a board and a unit-owner that delays may occur, no matter how frustrating it may be for board and unit-owner alike.

As for the wood terrace, plaintiffs brought this action even though they knew, or should have known, that the wood terrace was not approved by the board or the DOB. We do not know whether the board would have challenged installation of the wood terrace had it not been for the lawsuit. Once the plaintiffs sued, however, the board raised the issue so the court could presumably make a decision on all issues concerning the terrace.

Regarding the attorney fees, the court awarded them to the board noting it "is entitled to costs and attorney fees associated in curing plaintiffs' breach of the" bylaws. Presumably, then, the board can recover fees to the extent incurred to abate or remove any violation or default by the plaintiffs — for costs incurred to cause plaintiffs to remove the wood terrace and otherwise comply with the bylaws. This provision is fairly typical in condominium bylaws and — depending on the specific language and circumstances — may not provide for attorney fees when a condominium merely defends an action started by a unit-owner.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan. Dale J. Degenshein is a special counsel for that firm.

Illustration by Liza Donnelly. Click to enlarge

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