Last updated on December 6, 2023

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

For many residents of New York City, finding an apartment with ample space is a coveted but challenging feat. The city, notorious for its compact living quarters, often leaves its inhabitants yearning for more room. One solution to this spatial scarcity, particularly for those residing in co-op buildings, is access to the building’s rooftop. This prized amenity provides an outdoor extension to the living space and becomes even more valuable when it is the exclusive right of a particular unit.

When it comes to purchasing a penthouse in a co-op building, prospective buyers frequently inquire about their exclusive rights to the rooftop. Understanding these rights, however, requires careful examination of several factors. This is where the help of a New York co-op real estate attorney becomes critical. At Sishodia PLLC, our team of co-op real estate lawyers in Manhattan, can provide invaluable advice and guidance, helping clients navigate the complexities of proprietary lease terms, legal interpretations, and the nuanced due diligence process inherent in these transactions. Call us today at (833) 616-4646 to schedule a consultation.

Defining “Appurtenant” and “Adjoining”

A standard form proprietary lease for a co-op 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 of 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.”  

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. 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. 

Aspect Explanation
Premises Definition Proprietary lease defines the leased premises, including rooms, appurtenances, and roof portions allocated to occupants.
Exclusive Use of Space Lessees have exclusive rights to terraces, balconies, or roof portions adjoining penthouses as per Paragraph 7.
Interpretation of “Appurtenant” The court clarified “appurtenant,” ruling that the penthouse roof wasn’t necessary for usable enjoyment in a legal case.
Access to Roof Rights Access may require licensing, safety evaluation, and deck construction for protection, depending on Co-Op rules.
Due Diligence Prospective buyers should review documents thoroughly and consult a real estate attorney for complex transactions.

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 an effort into ensuring our clients understand their rights and empowering them by providing options. Our experienced New York City real estate attorneys 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.

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