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Who pays for repairs when a shareholder owns part of the roof?
AUTHORLisa A. Smith, Partner, Smith, Gambrell & Russell
PAGE #p. 50
You might think your roof rights are clear and established, but what happens when it comes time to pay for repairs?
In most cases, the question of which part of the roof the individual owns is not in dispute. This is especially true in condominiums, where the offering plan has schedules and floor-plans that delineate the square footage and location of the roof space that’s allocated to a specific unit. In cooperatives, it’s sometimes vague.
I’m going to focus on cases where it was clear that the shareholder or unit-owner owned the roof deck, but a question arose over who was responsible for the repair of that deck because of ambiguity in the governing documents. Most of the cases arise when we have a major capital project, or Local Law 11 work, or the roof has to be repaired. After the roof is fixed, the shareholder or unit-owner wants to put the deck back on, and wants the co-op or condo to pay for it. While it’s very clear that the cooperative or condominium is responsible for repair or replacement of the roof itself, is it then also obligated to put the roof deck back on once the roof has been fixed? Depending on the size or the structure of the roof deck in question, this can be a very expensive proposition.
No matter how complicated or expensive it may be, the roof deck is the responsibility of its owner. That means removing the decking, the plantings, the structure, and the personal property on that roof deck in order for the building to be able to make repairs. Because they have a vested interest in making sure the roof gets repaired and because they live directly below it, most roof deck owners won’t contest this. They probably also realize that the roof is common to everybody, and it’s a common expense that everybody’s going to share.
Occasionally, there are uncooperative players who simply say, “No,” or will make irrational demands for reimbursement of landscaping costs, or who want to be paid for the loss of the roof deck. Often the governing documents, some of which were written more than 30 years ago, are ambiguous. Does having roof rights mean you must have a deck?
Certainly the best way to avoid conflict and confusion regarding repair obligations is to make sure these obligations are clearly spelled out in the building’s governing documents. For the buildings we represent, we’ll examine the cooperative’s lease or the condominium’s bylaws. We’ll discuss with the board and the managing agent how repairs for certain portions of the buildings were handled in the past, and what issues arose. We sometimes add in highlights about repair and maintenance obligations. We might suggest improvements to those repair clauses in their documents as far as allocating responsibility. Then, we will assist the boards in passing the amendments so that those clauses can be formally added by the vote of the shareholders or unit-owners.
People may believe that the roof rights in their building are well-established, especially for properties that were converted in the 1980s and 1990s. Over the past year, however, we’ve encountered numerous conflicts between boards and shareholders or boards and unit-owners over who pays for repairs to the roof decks. It’s important that boards and managing agents communicate with the shareholders and the unit-owners. By communicating with the people and letting them know what their obligations are for repairs, replacements, and alterations, boards help alleviate future claims that the deck owners were unaware of their obligations.