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Roof Rights and Roof Decks: Owners Beware

Tom Soter in Legal/Financial on August 24, 2017

New York City

Roof Rights
Aug. 24, 2017

Ken Eisner, the ex-treasurer at his former co-op on the Upper West Side of Manhattan, still sounds remotely bitter about the fate of his roof deck. “There was no compensation to people who had that roof space, so we had to rebuild the decks at our own expense,” he says.

Eisner was one of four shareholders who, in the 1980s, bought a top-floor unit in a small co-op and gained exclusive access to a roof deck and a quarter of the roof. He also paid extra for the privilege, which was reflected in his monthly maintenance charges. But leaks developed over the years, and the decks had to be removed. “There was no compensation to people who had that roof space, so, afterwards, we had to rebuild the decks at our own expense,” says Eisner.

Eisner’s experience is not unique – and boards can face expensive lawsuits if they don’t handle such situations properly.

“To put a roof deck back can be costly,” says attorney Lisa Smith, a partner at Smith, Gambrell & Russell, who  is currently wrestling with just such a case at a different co-op on the Upper West Side. “If the board takes on the expense, then you've got the rest of the shareholders saying, ‘Why am I paying for something that has nothing to do with us?’ But if they don’t, then they have disgruntled roof deck owners saying, ‘’What about us?’”

Usually, the number one priority is to get the roof fixed. “You can argue about the cost for months,” Smith says. “But your roof may not wait that long. No matter how complicated or expensive it may be, the owners of the roof decks must remove their decking, any structures, and plantings, so repairs can be done. Most roof deck owners will not contest this – partly because they have a vested interest in making sure the roof does not leak.” Most co-op leases and condo bylaws also provide the boards with the right of access to the roof deck in order to repair the roof.

The battle usually arises after the roof is fixed and the shareholder/unit-owner expects the building to restore and pay for his or her individual deck. “Often the governing documents, which may have been written over 30 years ago, are ambiguous as to whether or not the individual’s right to use the roof also confers the right to have a roof deck on which the individual can walk upon and enjoy their roof space,” says Smith. Boards are often reluctant to restore the decks because the roofs of these buildings were not designed for foot traffic or decks and both can damage the roof. The typical compromise solution in such cases is for the co-op/condo to pay for a basic, no-frills, architecturally-OK deck, with any (approved-by-the-board) additions paid for by the owner.

Certainly the best way to avoid conflict and confusion is to make sure obligations for roof access and deck repair are clearly spelled out in the building’s governing documents. To avoid disputes before a deck has to be removed, Smith suggests that boards advise their owners of any policies regarding repairs, replacements, or  alterations. This will help eliminate claims that the shareholders/unit-owners were unaware of their obligations. A building information sheet or general “Owner’s Guide” may help. 

And what of former deck owner Ken Eisner, who moved out of his Upper West building in 2003 and now lives in a co-op further downtown? He learned one valuable  lesson from his experience. “We don't have any roof decks here. That’s a good thing. Roof decks destroy roofs.” Not to mention pocketbooks.

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