My NYC condo includes a terrace. The terrace (it is really the roof as my apartment opens onto the roof) is

Asked by Condoowner, New York, NY Thu Oct 25, 2007

clearly noted in the condo offering plan as part of my apartment. My terrace is described as a limited common element that I have the exclusive right to use. No one else is permitted to come onto the roof per the bylaws (through the emergency stairwells). I would like to improve my terrace adding decking and planters (I would follow alteration agreement and get proper engineering/DOB approvals and permits). The condo plan does not define how much of the roof is my terrace for my exclusive use. My board is difficult and will fight no mater what I ask to do. Any alteration request can not be unreasonably withheld. Any suggestions? Who decides how much of the roof is for my exclusive use if the condo docs are silent? Thanks!

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Joseph Ferra…, , New York County, NY
Sat Oct 27, 2007
BEST ANSWER
If the condo offering plan says you have exclusive right to use the roof--then you do have that exclusive right. BUT, since it is a limited common element it is NOT part of your unit---you do not OWN it. The right to use is equivalent to an easement.

Also since it is a limited common element, you CANNOT alter it. The key phrase is "common element". Read the definition in the offering plan & bylaws.

That being said, I would say go ahead and add planters and other easily removable items-- the worse that can happen is you have to remove them. But do NOT do any permanent improvements, since, as I say, you cannot own a common element.

OK, that's the law. Now, the Board may be persuaded to allow you to improve the roof if you make your argument that it is someone adding value to the building-- that will be hard (not impossible) to do since you are the only one who will be able to enjoy the improvements. In fact, the improvements increase the value of your unit and only by extension, increase the value of the overall building.

If you want to discuss further call me at 215-990-1016. I am an attorney.
1 vote
Gail Gladsto…, Agent, 11743, NY
Thu Oct 25, 2007
I am not sure if it applies to condos, but in real property, continued and uninterrupted use can translate into eventual ownership. Certainly take this to an attorney to question. I would suggest getting in touch with Barbara Ford at LIBOR 631-661-4800 who heads up committees dealing with co-op and condo rulings.
1 vote
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