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Who Gets to Go Up on the Roof?

Dale J. Degenshein in Legal/Financial on July 1, 2019

Upper East Side, Manhattan

Roof access.

"Looks like it's off-limits." (illustration by Liza Donnelly).

July 1, 2019

The co-op at 171 East 79th Street on the Upper East Side has a rooftop shaped like a large H. The crossbar of the H contains penthouse apartments. Philip and Mary Huyck own the penthouse on the northern side, which opens onto the northern rooftop. 

A dispute arose over whether the Huycks have exclusive rights to the northern rooftop, or if it’s available to all residents. The only entrances to the rooftop are private access through the Huycks’ apartment, or through a fire door with a panic bar and alarm that can be accessed from the communal stairwell. 

The Huycks bought their apartment in 1999 and renovated the rooftop, spending roughly $100,000. Their children have also lived there, on and off. Periodically, the door staff would permit residents to go on the rooftop through the alarmed stairwell door. When someone was home in the Huycks’ apartment, the staff would first call to let them know someone would be on the roof. In 2016, the board decided to place a table on the northern rooftop, apparently to signal that the area was accessible to all residents. A year later, the board president informed the Huycks that “the board wants the entire roof [to be] community property.” 

The Huycks filed a complaint. After three days of testimony, a judge issued a preliminary injunction – designed to maintain the status quo – saying that the board was allowed to erect a temporary barrier on a corner of the roof, along with a table, chairs, and an umbrella, but that residents could use that portion of the roof only when the Huyck family was not in residence. The injunction was intended to be temporary, until the parties could be heard in full. 

One of the Huycks' claims was that the proprietary lease allowed them exclusive use of the roof. The language was explicit: “lessee shall have . . . the exclusive use of . . . that portion of the roof appurtenant to the penthouse . . .” According to the lease, the cooperative could erect equipment on the roof, but its ability to use the area was limited to that purpose. 

The co-op board claimed that the Huycks waived their right to exclusive use of the roof because they had allowed other shareholders access over the previous 10 years. It was unclear how many times in those 10 years other residents requested to use the terrace when the shareholders were not there; one doorman said that during that time, he had spoken to someone in the apartment “maybe 10” times. But over the years, the Huycks had challenged the board’s assertion that others could use the rooftop. The court found that the fact that the Huycks did not sue earlier did not constitute a waiver of their right to exclusive use of the rooftop. In fact, the record was clear that the Huycks never abandoned their claim. 

The board tried to present two more arguments to prove that the Huycks were not entitled to the exclusive use of the northern roof. First, the board attempted to amend its claim to say that it wanted access only to the portion of the roof available to other shareholders, based on previous use. However, the board was unable to show that any one part of the roof had been treated as communal space differently from any other part of the roof. In fact, the Huycks produced examples of other shareholders using the roof with no regard to their privacy, including one occasion when a resident walked past the apartment windows while a guest was undressing. Next, the board asserted that the Huycks knew they did not have the exclusive right to access because they offered to buy the right from the board for $10,000; the Huycks stated that they offered the money so they could expand their apartment.  

The court found that the Huycks had full and exclusive rights to the northern section of the roof. One important lesson here for boards – and for apartment buyers and sellers – is that if there is any question about whether a rooftop area is for the exclusive use of a specific apartment, the parties should resolve it before papers are signed.

Dale J. Degenshein is a parter at the law firm Armstrong Teasdale.

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