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17 years ago I bought my co-op, which came advertising a "large roof deck." These rights were exclusive to this apartment and were part of the original offering. When I informed the Board that I intended to sell my apartment including the roof rights, they protested, claiming the original language was "vague," and told me that they were hiring a lawyer. I therefore had to hire one myself. The upshot is that the Board has chosen to re-apportion my shares from 725 to 950, with an increase in the maintenance for the apartment of approx. $350.
Is what they've done illegal? Greedy? Unethical? I'd love some feeback.
I agree completely with Carl's advice and observations. Check your offering plan to see if the roof deck is included in the schematic of your unit.
Something you might research is a set of statutes called "adverse possession". Adverse possession basically states that if you've been using property that doesn't belong to you "open and notoriously" (meaning that you didn't try to hide your use), after 10 years the property is yours. In NYS most laws regarding real property at taken to include co-op ownership as well.
I am also not a lawyer, so I don't have any idea of adverse possession applies in your case, but it would be interesting to look into.
Couple of questions to clarify:
-You are paying $725 - is that more or the same as other units your size?
-Do other units of the same size (same maintenance fee) have a balcony or an outdoor space that they have exclusive right to?
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You say you've hired a lawyer, and that person should be your guide on this. That said, here are a few comments from a non-lawyer:
* How the co-op was advertised at the time of purchase isn't relevant now. Any argument you have there would be between you and the long-departed seller. It is very unlikely you could pursue any action against the seller after 17 years.
* The offering plan should have the definitive answer on exclusive rights to the roof deck. It's possible that your board is right and the language is vague. This is very much a question for your attorney and has no fixed answer. But if you can show that the offering plan really does give you exclusive rights to the roof deck, it would be hard for the board to mount a reasonable argument against that.
* Increasing the shares is the most eyebrow-raising part. This sounds like the board has decided the offering plan really does give you exclusive use of the deck, and they want some compensation for that. But unless you have an unusual proprietary lease - or have actually signed some sort of agreement after the initial purchase saying that you accept the additional shares - this seems unlikely to hold up. If your co-op uses the template common to many 1980s conversions, check paragraph 6, "Changes in Terms and Conditions of Proprietary Leases." Ours has this phrase: "The proportionate share of rent or cash requirements payable by any lessee may not be increased ... without his express consent."
Again, you need to talk to your lawyer about these points. Make sure you have an attorney who is conversant with the intricacies of co-op law. Your general-purpose family lawyer may be excellent, but would be the wrong person to handle this for you.
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