ROOF DECK P.2

The court directed the co-op to make repairs to the roof so that it would be usable in accordance with the Shapiros' rights under the lease and offering plan, but that it would be "subject to reasonable regulation by" the co-op. The court denied the Shapiros' demand that they were entitled to install planters, decking, and other similar items. Whether such installations violated applicable city codes or caused damage to the roof structure were issues left for a trial.

Comment: In this situation, the co-op apparently attempted to solve its problem of a leaking and deteriorating roof by prohibiting the shareholder from using the area. The court stated that such a position violated the proprietary lease, which clearly gave the shareholder exclusive use of the area. In sum, the court found that — where a shareholder has use of an area of the building that the co-op has an obligation to maintain — the co-op must take steps to make sure that the area is available for its intended use.

As the court noted, the plaintiffs paid for the right to use the area when they purchased, and paid for that right in their monthly maintenance charges. The question of what can be placed on the terrace was subject to the co-op's standard alteration procedures, and the shareholders could not simply install what they wanted on the roof. As is typical, the co-op had the right to have its board and professional advisers review and approve any proposed plan to make sure, among other things, that the building envelope would not be damaged by any installation.

We found the motion court's reliance on the offering plan interesting. An offering plan is typically a "contract" between a sponsor/developer who converts the building to cooperative ownership and the shareholder who purchases from the sponsor. The plan may, in certain circumstances, be used for the purpose of clarifying an issue if it is ambiguous in the proprietary lease. We do not know why details of the offering plan were reviewed by the court in this case, although we suspect it was raised by one of the parties.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan. Dale J. Degenshein is a special counsel for that firm.

Illustration by Liza Donnelly 

From the December 2011 issue of Habitat magazine. For print-magazine articles back to 2002, join our Archive >>