YOUR CEILING — OR IS IT?, P.2

RMP Essex, the present owner of 1601, admitted that the area in which the plumbing exists was below the concrete slab of that unit and above the sheetrock ceiling of Duran's. But it said this was part of the condominium's common area. Section 11 of the bylaws, provided that, "An owner shall not be deemed to own the undecorated and/or unfinished interior surfaces of the perimeter walls, floors, ceilings, windows and doors bounding his Unit, nor shall the owner be deemed to own the utilities running through his Unit which are utilized for, or serve, more than one Unit, except as a tenant in common with the other owners. An owner, however, shall be deemed to own the decorated and/or finished interior surfaces of the perimeter walls, floors, ceilings, windows, and doors bounding his Unit …."

In an affidavit, James C. Reeves IV, the project manager for RMP's renovation of Unit 1601, said: "The renovation of Unit 1601 was purely cosmetic in nature. No pipes or conduits behind the walls or below the floor of Unit 1601 were removed, replaced, added, or touched in any way. Neither the two bathrooms nor kitchen were relocated. Rather, RMP Essex, as is relevant here, replaced existing fixtures and connected them to the existing waste and water connections at the wall in Unit 1601."

Reeves went on to say that it was his understanding "that the area below the concrete slab of the floor and above the plaintiff's finished sheetrocked ceiling is a common element of the condominium. The same way the space above Unit 1601's finished sheetrocked ceiling and below the concrete slab of the unit above is a common element of the condominium."

Where the Case Ends

The court did not grant Duran his preliminary injunction. In the court's view, the sections of the bylaws and declaration he cited did not establish that the area in which the plumbing installed was part of his unit. Interestingly, the term "uppermost ceiling" is not defined, and is susceptible to multiple interpretations. Duran submitted no evidence supporting his interpretation.

Nor did Duran submit evidence that the plumbing was illegal, offensive, an annoyance or a nuisance, the court found. Without additional information, such as how other similar spaces in the building and any plumbing were regarded by other unit-owners, the court could not determine this issue.

Similarly, Duran submitted no evidence supporting his claim that he was told by Lockhart and one of her contractors that the plumbing was recently installed, nor did he submit evidence that Lockhart's agents entered his unit with the aid of the other defendants. But, in the court's view, Reeves' affidavit raised a question as to whether the area in which the plumbing was installed was a common element.
The court also concluded that Duran had not shown that he would be irreparably harmed without an injunction. The plumbing he objected to was already present, and he had not presented any evidence that RMP was engaged in further installation of plumbing in the disputed area. The only imminent action he referred to was the attachment of fixtures to the plumbing in Unit 1601. This did not constitute irreparable harm because the fixtures in Unit 1601 could be removed without harm to Duran's property.

In one additional issue, Reeves claimed that further delay of construction in Unit 1601 would harm the prospective tenant, a man in his late 70s, who was temporarily housed in one of the hotel rooms on the premises, awaiting completion of the 1601 renovation.

The dispute here concerned who was in control of a condominium space between the ceiling and floor of two units. Either it was part of the lower unit or it was within the common elements. The facts were in dispute, and it is usually difficult to obtain a preliminary injunction because of the requisite burden of proof.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.

Adapted from Habitat December 2005. For the complete article and more, join our Archive >>