When a Declaration's Text and Floor Plan Conflict, Who Gets the Toilet?

According to New York State law, a condominium's declaration must contain a "description of the common elements and a statement of the common interest of each unit owner." At Echelon — a 13-story, 54-unit condominium built in 2006 at 13-11 Jackson Avenue — the declaration declares that the first-floor common areas consist of a "tenant recreation area, lobby, custodian closet, compactor room, trash room, package room, mail room, telephone/television closet, superintendent's office, telephone room, electrical room, water meter room, gas meter room." 

Unfortunately, the declaration's floor plan didn't include a superintendent's office and instead has a space designated "storage." Rather than clarify the issue, the condo board and its attorney figured, perhaps, that since both words start with "s" that, well, "storage," "superintendent's office" … six of one, half-dozen of the other.

Permission Slip

Not so fast, said the sponsor, Yaron Hershco, managing member of Jackson Avenue Realty LLC. Or at least he would have if it didn't take him seven years to say it — during which time the condo superintendent used the room to break down garbage and, ironically, store building supplies. But on August 7, 2013, Hershco notified the board that the use of the room was permissive only and that he could revoke permission at any time. And on April 18, 2014, that's exactly what he did.

He made a pretty good case: in the floor plan his company filed in its March 5, 2007, declaration, the first-floor commercial unit and the adjacent storage room are shaded the same. And the 2,684 square feet of the commercial unit includes the 522 square feet of the storage room. Hershco said he only let the condo use the space as a super's office as a temporary accommodation and that now, despite the letter, the board wasn't budging. So, basically, "Try to be nice, look where it gets you…"

On the other hand, the storage room has the only ground-floor toilet that the building staff, including a doorman, can use. The board might want to take that up with the Newman Design, the building's architect, but that's a whole other matter.

On the Trail to Trial

As for this matter, said Judge Robert J. McDonald on August 18, "…there is a disparity between the text of the declaration and the floor plan … with regard to the ownership of the 'storage area,' [and] the ambiguity raises a question of fact which shall be determined after discovery and trial on the merits."

Until then, he's letting the condominium use the room, under a doctrine with the very lovely name "a balancing of the equities." In other words, since the lack of a staff toilet will hurt the condo more than not using the room will hurt the sponsor — who hadn't needed it for several years and has no immediate need of it now — the condo gets to keep using it until this gets sorted out at trial. And thank goodness — imagine the alternative!

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