Last updated on November 8, 2022

Do I Have a Roof Rights When Purchasing a Penthouse in a Coop?

Given how notoriously cramped and small New York City apartments are, access to open spaces is something many New Yorkers look for in their dream home. For those living in co-op buildings, this might be achieved through having access to the building rooftop. Roof access is a cherished amenity, with the additional space becoming even more precious when it is the exclusive right of a unit. When purchasing a penthouse in a COOP’s building, clients often ask if they have the exclusive right to use a building’s rooftop.  As a manhattan coop real estate attorney, Sishodia PLLC advises to look at several different factors in order to understand your rights.  

It is important to read carefully the offering plan and proprietary lease for the cooperative to check if an apartment has a terrace, balcony, roof, or portion of a roof allocated exclusively to it. However, when there is no such clear statement in the offering plan, how to determine whether the apartment comes with exclusive roof rights? 

A standard form proprietary lease for a COOP in New York City defines the premises leased to the shareholder as “the rooms in the building as partitioned on the date of the execution of this lease designated by the above-stated apartment number, together with their appurtenances and fixtures and any closets, terraces, balconies, roof or portion thereof outside said partitioned rooms, which are allocated exclusively to the occupant of the apartment.”  

Paragraph 7 of a standard form proprietary lease also states that “[i]f the apartment includes a terrace, balcony, or a portion of the roof adjoining a penthouse, the Lessee shall have and enjoy the exclusive use of the terrace or balcony or that portion of the roof appurtenant to the penthouse”.   

There have been different interpretations on what constitutes “appurtenant” and what “adjoins” the roof until the Supreme Court of the State of New York, New York County in Rushmore v. Park Regis Apt. Corp., 2018 WL 3126499 (N.Y. Sup. Ct., N.Y. Co. June 20, 2018) issued a clear ruling on the matter. In the case of Rushmore v. Park Regis Apt. Corp, the plaintiff claimed they had the exclusive right to use a portion of the building’s roof located directly above their penthouse apartment. On the other hand, the defendant stated that access to the roof was for all the building residents. The main issue was whether the building’s roof was adjoining or appurtenant to the penthouse in question-based on the standard provision of the coo’s proprietary lease. The Court distinguished between the portion of the roof of the building that is on the same level as the floor of the penthouse unit and the roof over the penthouse unit. The Court held that the roof above the penthouse apartment was not an “appurtenance” because an appurtenance “is a right of way that is necessary to give usable enjoyment to the conveyed premises” (citing Fischer v. Anger, 283 A.D. 2d 2nd  865 (3rd Dept. 2001) and found “that exclusive use of the penthouse roof by the owner of the penthouse [apartment] is not necessary to give that owner usable enjoyment of the [apartment], [nor] to give the owner of the apartment[s] immediately thereunder usable enjoyment of those apartments.”  

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. In fact, the shareholder may have roof rights to build above his/her unit with the filing of proper permits and approval by the city, especially due to building codes and fire safety protocols, but not necessarily the immediate right to access the roof. Accessing the roof before he/she builds above the unit may require a licensing agreement with the Co-Op, an engineer to ensure it is safe to congregate on the roof, and the building of a deck to protect the roof.

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 complex. An experienced real estate attorney who can help you navigate the technicalities of such a transaction can make the process go smoother. 

At Sishodia PLLC, we put an effort in ensuring our clients understand their rights and in empowering them through providing options. Our experienced New York City real estate attorneys conduct thorough due diligence of the building and property so that purchasers can take a well-informed decision when buying a property. We commit to delivering quality legal services to our clients that will allow them to meet their real estate goals. 

This article is not legal advice. If you are in need of legal advice, our experienced real estate Manhattan coop purchase attorneys may be able to help. Leave your contact details on our online form now to get in touch so you can make the process of buying and selling a home simultaneously go as smoothly as possible.

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