Just Because You're Board President Doesn't Mean You Get a Roof Deck

Benjamin E. Epps, who had been a music producer in the 1980s, Amy Monroe and their son lived in duplex apartment B-3 at 615 East 11th Street (above), part of the 12-unit, two-building Del Este Village IV condominium. There seems to have been some silly misunderstanding in the mid-2000s, since Epps — who around this time had been condo board president — had a private deck installed on the common-area roof, even though he and Monroe had not gotten, as the condo's rules required, the board's prior written consent.

It's unclear from court documents if Epps was still board president on May 15, 2007, when the board send him and Monroe a letter saying the couple had constructed the deck with neither permission nor a construction permit. They hadn't even submitted an alteration agreement, as required by the condominium bylaws. And one can certainly forgive the board for mentioning it had no information about the safety or quality of the construction, or whether the couple had bought enough insurance in case the deck created a liability.

Documented. Sort of.

Still, hold on, said Epps: When I was board president we had a building-wide meeting in November 2005 where the unit-owners discussed roof decks "and ultimately voted on the proposal that the building take all necessary steps to formally allow the use of the rooftop for decks." In fact, it passed 10 - 2! Why, to prove it, here's this handwritten note by an unidentified person who tallied the vote. Don't pay attention to the fact it's dated Oct. 31, 2005, before the meeting took place. 

That chronological anomaly aside, the board responded that the unit-owners did not, in fact, vote on a proposal to construct roof decks but had simply voted “to allow for exploration of the exploration of the issue." Indeed, the minutes of the November 2005 meeting say: 

• "Roof Deck: In exploratory stage. All upstairs homeowners agree to shoulder all expenses associated with it. Questions still remain re: permits, liability, report of structural engineer, architectural plans, etc."

Regardless, Epps told the court that in his capacity as board president, he "assisted" the board in "researching and implementing projects of the building which affect common elements of the building" and to that end "took the responsibility of implementing [a] roof deck" in Spring 2007. He claimed the board chose the contractor and that the roof deck didn't require permits from the Department of Buildings or any other city agency.

It's Lonely at the Top

No one other than board-prez Epps had installed roof decks, though, and in a June 2007 e-mail to homeowners, the board wrote;

• "Because of the barrage of new information presented by the attorney last week and the lack of time to digest all this new information, which resulted in a confused and hurried vote, the Board has decided it would be in everyone's best interest to 're-set the clock' and start afresh… The first issue that needs to be resolved is the removal of the illegal structure on the roof. Only after this situation is rectified can we proceed in a reasonable, step-by-step fashion to determine (a) what kind of decks are in fact permissible by the building code (if any decks at all), and (b) whether the building wishes to amend the by-laws to allow for them at all."

Since even the board conceded there had been "a confused and hurried vote" of some sort at some point, the water does appear to be a little muddied. But not that muddied, and certainly not so muddy that Judge Judith J. Gische wouldn't grant the board a preliminary injunction in April 2008 forbidding the apartment-owners and anyone connected to them "from entering upon and/or utilizing, for any purpose or reason, the roof structure on the premises."

Since then? The three-bedroom, two-bath duplex was advertised as a rental last year. Among its amenities — dishwasher, separate laundry room, copious closets, pet-friendly building — there is no mention of a roof deck.

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