A lawyer looks at penthouse "problems:" Noise, weather-related issues, roof uses and expansions

Living in a penthouse, especially in New York City, is a dream-come-true for many. There are wonderful things about penthouse life, but there can also be many unique problems and issues. There are different types of penthouses. Some co-ops and condominiums have penthouses which sit on the roof like a house. Others are on the top floor apartment and may have access to the roof. Thus, penthouse apartments are more exposed to the elements than other apartments in the building may be. If there is flooding or snow accumulation on the roof which leaks into the building, the penthouses are the first to be affected. Another issue I am being consulted about with greater frequency lately are issues arising from having a penthouse in a newly constructed condominium, where the noise from fans and other mechanical equipment on the roof can make life uncomfortable for penthouse owners. Whether you are a developer or the owner of this type of property, here are some things to consider. Penthouse owners have unique access to the roof, which makes the owners feel a lot like the whole roof is theirs. The source of a shareholder's or unit owner's right to use the roof can be found in the offering plan and proprietary lease or the declaration of condominium. However, sometimes the language in these documents is unclear. Usually the penthouse apartment shareholders can "use" the roof, subject to house rules, but it is still considered a common element of the building. So if the building needs to put antennas on the roof, they can. If repairs need to be made on the roof, the building can ask the shareholder to take up his decking at his own expense. Some buildings allow penthouse owners so much freedom that they "forget" that they do not own the rooftop. Penthouse owners need to be reminded periodically that they do not own the roof. When the building needs to do maintenance work, many penthouse owners are reluctant to disassemble their roof top gardens, decks and barbecues to allow access. Even worse, when there is Local Law 11 work, the contractor may need to store materials on the roof and have access for scaffolds. Sometimes this can result in elaborate agreements to cover the contingencies. Penthouse owners tend to want to expand the size of their apartments, perhaps more than other types of apartment owners. It is not unusual for them to ask to purchase more space on the roof. If they have the floor below the actual roof, they may want to cut through the roof and expand on to the roof. Deciding whether or not to allow this can be a difficult decision for the board, with a lot of politics involved. Making such a decision requires input from a variety of professionals, including architects, engineers, legal counsel and appraisers. There are structural and logistical issues to be considered. Renovations on the penthouse will likely require scaffolding and sidewalk bridges that may remain in place for an extended period of time. There may be equipment that needs to be hauled up the side of the building. Buildings which have had bad experiences with such renovations often require very large security deposits and customized alteration agreements to cover all the issues involved. Additional shares need to be issued in co-ops or deeds in condominiums. New issues may arise with regard to the maintenance of the roof going forward and the building will want to be indemnified. Whichever side of this issue you are on, getting legal advice from an attorney familiar with construction and co-op law is essential. If the parties can talk and try to reach solutions to problems, with the assistance of knowledgeable legal counsel, many problems which might otherwise mushroom into lawsuits can be avoided. C. Jaye Berger, Esq., is principal of Law Offices C. Jaye Berger, New York, N.Y.