As his lawsuit put it, Timothy C. Duran, the owner of Unit 1501 at the Essex House condominium in Manhattan, found that the then-owner of the apartment above his "installed plumbing pipes in the ceiling…without [Duran's] knowledge or consent" and in violation of his property rights. The complaint further alleged that the condo association or its managing agent gave the owner of 1601, Barbara Lockhart, and/or her contractors access to Duran's unit without his consent.
But the court refused to grant Duran a preliminary injunction that would have prevented the subsequent owner from performing further renovations. Here's why — plus some surprising facts about the "uppermost" limits of apartment ownership.
In July 1998, Duran, a resident of San Mateo County, Calif., purchased Unit 1501 of the Central Park South hotel/condo landmark (which was purchased by the Dubai Investment Group in January 2006 and renamed the Jumeirah Essex House). In August 1998, he began renovation. The following year, a dispute arose between the condo board and Duran's contractor, which led to litigation that stopped work from fall 1999 to February 2003, when Duran and the contractor came to an agreement whereby the remaining work was to be completed within 14 weeks.
At about this time, Duran "discovered that the Condominium had permitted a contractor… to use the Unit as an onsite facility complete with an office, phone line and employee lounge, all without plaintiff s knowledge and consent." Duran objected, of course — but the "managers of the Hotel and Condominium" denied knowledge of the use and promised to stop it. Duran later discovered that the unauthorized use continued until January 2004, and his contractor couldn't continue work until the condominium's contractor vacated the space.
Now comes the plumbing issue. Duran's complaint further alleged that "in the course of construction work done by Lockhart in Unit 1601, one of Lockhart's agents and/or contractors installed plumbing pipes in the ceiling of Duran's unit without his knowledge or consent..." The defendants allegedly granted Lockhart's agents and/or contractors unauthorized access to Duran's unit. Duran allegedly demanded, to no avail, that the pipes be removed.
Duran said that he discovered the disputed plumbing in February 2004, in the area between Unit 1501's sheetrock drop ceiling and the bottom surface of the concrete slab between his apartment and Unit 1601. He further said that he and his contractor determined that this plumbing had been installed at some point after the original construction in his apartment had ceased. He further said he was told by Lockhart, and by one of her contractors, that the plumbing had been installed "sometime during the last couple [of] years."
Duran cited photographs of the unit in 1998 that purportedly demonstrate that the plumbing was not then present — but he included no such photographs in his suit. He claimed he had been advised that the plumbing was to support the transport of waste products out of a new kitchen and bathrooms being installed in Unit 1601. Duran claimed that "one or more of Lockhart's agents and/or contractors actually entered his Unit without his permission in order to install the plumbing..."
Where the Ceiling Ends
Duran asserted that the installation of 1601's plumbing in his ceiling interfered with his property and violated the bylaws and the declaration of condominium. He pointed to Section 6 of the declaration: "The approximate dimensions of each Unit are from the interior surfaces of its perimeter walls, lowermost floors, uppermost ceilings, windows and window frames, doors and door frames, and trim. Each Unit includes both the portions of the Building within such boundary lines and the space so encompassed."
It was Duran's position that the space in which the plumbing was installed – above his drop ceiling and below the concrete slabs of Unit 1601 – was below the uppermost ceiling of his unit, and thus, was part of his property. In addition, Duran contended that the plumbing violated Section 9 of the declaration, which provided that no noxious, illegal, or offensive activity shall be carried on in any unit or in the common elements, nor shall anything be done therein which may be or become an annoyance or nuisance to other owners.
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