Finding an apartment with real breathing room in New York City is tough. Most places are tight. If your building has a rooftop you can use, that space can feel like an outdoor living room. If you get exclusive use, even better, especially in a city where access to such can be limited and pricey.
Thinking about purchasing a penthouse in a co-op? Clarifying if the roof comes with exclusive rights is crucial; the only way to know is to dig into the purchase agreement and the facts. Our co-op real estate lawyers in Manhattan at Sishodia PLLC can review the proprietary lease, house rules, and building records, explain what the legal jargon really means, and map out the due diligence so you get the rights you expect. Call Sishodia PLLC at (833) 616-4646 to schedule a consultation.
What Is the Meaning of Roof Rights?
Roof rights are simply the rules for using the roof. They lay out what you can do up there and what you cannot.
If you live in a NYC co-op, the roof belongs to the co-op as a common area. The board can give you exclusive use of a defined section, usually spelled out in your proprietary lease, the offering plan schedule, a roof rider, or a license agreement. Exclusive use covers just that, use of the space. You do not own the roof. The board can still access the space for maintenance and repair. Some buildings open part of the roof for everyone to share. Others keep the roof closed except for building work.
In a condominium, the roof is also a common area. A terrace or roof section can be labeled a limited common element for your unit. You get to use it, but the association still owns it, and building rules apply. The bottom line is simple: use is not the same as ownership.
Defining “Appurtenant” and “Adjoining”
A standard form proprietary lease for a NYC co-op typically defines the demised premises as the apartment plus any closets, terraces, balconies, roof, or portion thereof outside the partitioned rooms that are allocated exclusively to the occupant. Many versions also say that if the apartment includes a terrace, balcony, or a portion of the roof adjoining a penthouse, the lessee shall have the exclusive use of the terrace or balcony or that portion of the roof appurtenant to the penthouse, subject to the lease.
Courts have clarified what “appurtenant” and “adjoining” mean in this context. In Rushmore v. Park Regis Apartment Corp., the court distinguished between the portion of the roof that is on the same level as the penthouse floor and the roof above the penthouse structure. The court held that the lease language gives the penthouse owner exclusive use of the roof area on the same level and just outside the penthouse, but not the roof over the penthouse itself. The opinion cites Fischer v. Anger for the proposition that an appurtenance is a right of way necessary for usable enjoyment of the premises.
Manhattan Co-op Real Estate Lawyer
Natalia A. Sishodia, Esq., LL.M.
Natalia Sishodia is a New York City attorney known for high-end real estate work, especially Manhattan co-op and condo transactions. Fluent in English and Russian, she represents domestic and international clients, including high-net-worth individuals, celebrities, businesses, and major mortgage lenders, through every stage of a deal: co-op and condo purchases and sales, single- and multifamily homes, new developments, conversions, deed transfers, leasing, lending, and 1031 exchanges. With hundreds of successful closings, her meticulous planning has earned a reputation for “stress-free” results.
Beyond real estate, Ms. Sishodia maintains a robust private-client practice covering business law, elder law, estate planning, and taxation. She advises on multijurisdictional wealth management and cross-border tax and trust strategies, including estate planning for digital assets and cryptocurrency. Committed to service, she has contributed pro bono work through the United Nations (DESA and the Convention on the Rights of Persons with Disabilities), supports Travelogion’s mission for post-treatment brain cancer patients, and educates communities via real-estate seminars. Honors include the Award for Outstanding Achievement in International Law and the Avvo Client’s Choice Award. Admitted in New York.
Importance of Due Diligence When Purchasing a Co-op with Roof Rights
When the offering plan clearly states that an apartment comes with exclusive roof rights, it is still important to clarify during the due diligence process what that actually means. Exclusive use often allows you to place decking and furniture, but it usually does not grant an automatic right to enclose space or build upward. Any construction on the roof typically requires written board consent, a signed alteration agreement, New York City Department of Buildings permits, and compliance with zoning and life safety rules. Boards also retain access for leak detection and repairs, and work may temporarily limit use of the space.
Therefore, prospective buyers of apartments need to be aware of what exclusive rights and spaces they are purchasing into. Before signing the contract, it is important for your co-op purchase attorney to conduct thorough due diligence by reviewing the offering plan, its amendments, bylaws, board minutes, and financials for the building. Reading through these documents can be overwhelming and intimidating. An experienced real estate attorney who can help you navigate the technicalities of such a transaction can make the process go smoothly.
Maintenance Obligations and House‑Rules for Rooftop Terraces
Rooftop terraces come with real responsibilities. You are typically required to keep the surface tidy, sweep up leaves, and keep drains and scuppers clear so rainwater does not pond. Planters are usually limited in size and weight to protect the roof membrane. Use lightweight soil, place saucers under pots, and keep heavy items away from parapets and drains. Furniture often needs protective pads. Boards commonly prohibit anything that pierces the roof, like nails or anchoring bolts. Expect to move planters and furniture, sometimes on short notice, when the co-op needs access for leak detection, waterproofing, or other repairs.
House rules set daily life on the roof. Most buildings post designated hours, quiet times, guest limits, and caps on the size of gatherings. Grill use is tightly controlled under NYC codes, and many buildings prohibit it altogether on roofs. NYC fire rules limit propane and charcoal in many multi-family buildings, so you may be limited to electric grills or a supervised common grill. Always check your building’s policies and FDNY guidance before using any grill. If pets are allowed, you will likely have cleanup and leash rules.
Before you buy, ask the board or managing agent for the full house rules, the proprietary lease, any roof rider, and past correspondence about leaks or violations. Read for who pays for waterproofing, what happens if a planter cracks the membrane, and how fines are handled. A Manhattan co-op real estate attorney can review these documents, explain your maintenance duties in plain language, flag risky clauses, confirm permits for existing deck work, and negotiate clarifications or repair cost allocations so you know exactly what you are taking on.
| Term/Event | Definition / Holding |
|---|---|
| Appurtenance | A right of way necessary to give usable enjoyment to the conveyed premises |
| Roof adjoining/appurtenant a penthouse | Roof area on the same level and just outside the penthouse; exclusive use granted |
| Roof over the penthouse unit itself | Not considered appurtenant; no exclusive use granted |
Condo Vs. Penthouse
The choice between a condo and a penthouse involves evaluating distinct attributes and potential drawbacks inherent to each living space. Penthouses, typically situated atop buildings, are favored for their exclusivity and secluded ambiance, offering a quiet retreat above the urban bustle and the absence of overhead neighbors. These units often come with high-end amenities like fireplaces, hot tubs, and sweeping city vistas, not commonly found in condos. However, the luxury and prestige of penthouse living are reflected in its higher cost, potentially placing it beyond the reach of budget-conscious individuals.
Conversely, condos represent a more economically viable option, striking a balance between comfort and affordability. While they might lack the opulent features of penthouses, condos facilitate a practical, low-maintenance lifestyle. The shared responsibility for maintenance costs among condo residents renders this option more financially appealing for many urbanites.
Nonetheless, condos generally offer less space and privacy compared to penthouses. Proximity to neighboring units on the same floor in condos can raise concerns about noise disturbances. Maintenance aspects also differ; penthouse owners might contend with issues like roof repairs or storm damage, whereas condo owners benefit from a collective approach to building upkeep, alleviating the burden of individual maintenance responsibilities.
There are also practical considerations. The elevated location of penthouses can pose challenges during emergencies, potentially complicating building evacuation or emergency response. In contrast, condos, typically situated at lower levels, offer more straightforward ingress and egress, making them a pragmatically safer option for some.
Ultimately, the decision between a condo and a penthouse hinges on personal preferences regarding lifestyle, financial capacity, and willingness to engage in maintenance activities.
Getting the Legal Help of an Experienced Manhattan Co-op Real Estate Attorney
At Sishodia PLLC, we put effort into ensuring our clients understand their rights and empowering them by providing options. Our experienced New York City real estate attorneys can conduct thorough due diligence on the building and property so that purchasers can make a well-informed decision when buying a property. We deliver quality legal services to our clients that will allow them to meet their real estate goals. Contact us today at (833) 616-4646 to schedule a consultation.
