Victor M. Metsch in Building Operations on April 26, 2018
For residents of New York City co-ops and condominiums, roof access is a cherished amenity. When that access is the exclusive right of one unit, the amenity becomes a treasure. But it’s worth remembering that private roof access is not the same thing as roof ownership. The people enjoying exclusive access to the roof are bound by various agreements – the certificate of incorporation in a co-op, the declaration in a condominium, and the by-laws, rules, and regulations in both types of buildings.
A recent court case concerning a roof terrace in a condominium illustrates two points: exclusivity may be trumped by the necessity for inspection and repair; and obstructing such work can backfire against a unit-owner.
The plaintiffs in the case owned the penthouse apartment and, under the declaration and by-laws, had the exclusive use of the condo’s rooftop terrace. When water infiltrated several units, construction rigging was installed on the terrace to facilitate inspection and determine the source of the leaks.
Plaintiffs alleged that the building manager orally promised that the rigging would be removed by March 31, 2014. However, the work took longer than expected because multiple inspections revealed that the leaks were more extensive than had been anticipated, and severe winter weather impeded the repairs.
Plaintiffs sued the board for breach of contract and trespass. And the board countersued for wrongful interference with the right of access. The board also sought to have the plaintiff pay its legal and engineering fees. The board prevailed on all counts in state supreme court. Plaintiffs appealed.
The appellate court sustained dismissal of the breach of contract claim because, under the declaration and bylaws, plaintiffs were obligated to permit access to the terrace to inspect and make necessary repairs. And the court found that plaintiffs offered nothing that bound the board to the alleged oral promise to remove the rigging by a prescribed date.
The court also sustained dismissal of the trespass claim because the board gave proper notice of the need for access and did not need plaintiffs’ permission to keep the rigging in place. Ironically, when plaintiffs claimed trespass damages to a deck on the terrace, the court ordered the deck removed, and plaintiffs did not appeal the order.
Finally, the court upheld that the plaintiffs had to pay the board’s attorneys’ fees. The condo’s bylaws provided for such an award, and the board was successful on the counterclaim that plaintiffs wrongfully interfered with the right of access to the terrace to make repairs. The court also upheld that the plaintiff had to pay the board’s engineering fees – because the engineer’s inspection revealed that the deck had been installed by plaintiffs without the board’s consent and without a building permit.
The court found that the board had acted in good faith and in compliance with the Business Judgment Rule, and therefore the board’s actions were not subject to judicial intervention or review. And the court rejected plaintiffs’ other arguments in view of their “relentless litigation” of the board’s efforts to fix a leak and protect the building.
There’s a lesson here. Sometimes neighborly cooperation and patience are a more effective tool than litigation in resolving co-op and condo disputes. And the needs of the community often take precedence over the rights granted to a specific apartment.
Victor M. Metsch is of counsel at the law firm of Smith, Gambrell & Russell.
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