Up on the Roof: Illegal Additions Are a Major Minus

I represent the board at a seven-story, seven-unit artists’ loft building in the East Village. They wanted me to address the illegal alterations that the top-floor shareholder had made to the roof. That shareholder had been the sponsor of the conversion from rental to co-op more than 30 years ago, and he had added an illegal penthouse and deck, changed the coping stones, and added planters to the roof parapet wall. Because of these additions, the parapet walls and coping stones had partially deteriorated. When confronted, the shareholder dug in his heels.

In a situation like this, I recommend that you don’t jump into litigation immediately. Try to negotiate. We did – and we made some progress in negotiations, but not nearly enough. The board wanted all the illegal structures removed from the roof, but the seventh-floor shareholder wouldn’t even acknowledge that they were illegal.

Finally, the Department of Buildings came in and placed violations on the roof and the penthouse, which are now being transferred online via DOB Now. Because negotiations did not progress far enough, litigation started after about three months. We sought an injunction to enjoin the seventh-floor shareholder from occupying the illegal rooftop structures, and we have succeeded in getting many of the unsafe conditions on the roof removed.

This situation has resulted, so far, in more than $100,000 in attorney’s fees to the co-op. There was a partial vacate order directing that no one occupy the penthouse because it was an illegal, dangerous condition. Because the building was separately moving its individual gas meters on each floor, the plumber and Con Ed had both tried to come in and perform inspections. The plumber couldn’t do the work, however, because ConEd refused to do an inspection as a result of the partial vacate order, which can’t be lifted until the penthouse is removed. The shareholders, especially those with children, are very concerned about heading into winter without gas heat. We’re now in the process of removing the remaining illegal structures and repairing and restoring the roof, which is probably going to cost somewhere between $125,000 and $200,000.

The lesson here is that bad things can happen when board members and shareholders don’t pay attention. Unapproved alterations happen all the time. When people see something, they should say something.

Also, a modern alteration agreement is a very important tool for a co-op to have whenever there is serious construction going on. Here's how to prepare one. If a shareholder wants to do anything greater than painting walls or scraping floors, an alteration agreement should be entered into between the shareholder and the co-op, and it should be strictly enforced.

Steven Troup is a partner in the law firm of Tarter Krinsky & Drogin.