Sunday, October 1, 2006

Can a Board Restrict The Use of the Roof?

The New York Times
October 1, 2006

Can a Board Restrict The Use of the Roof?

Q -- We own a co-op apartment on the top floor of a town house. When we were shown the property, the broker told us we could use the roof above the apartment. During our interview with the co-op board president and his wife, the wife said that she used to go up there ''to sun with the children.''

Three years later, the board president issued a letter stating that the building's insurance policy restricts the use of the roof to emergencies and that it must remain closed at all other times. We have asked to see a copy of the directive from the insurance company but have had no response. What can we do?

A -- Arthur I. Weinstein, a Manhattan co-op lawyer, said that a co-op may adopt rules that limit or prohibit use of a common area for any cause that the board deems reasonable. ''This can include insurance requirements, structural limits of the roof or the inappropriateness of the roof surface for walking, furniture or plantings,'' he said.

Mr. Weinstein noted that comments made by a broker or a board member's wife are not binding on the co-op and do not limit its right to change its rules.

He noted that the only circumstances under which a court might review the reasonableness of the board's decision would be if the proprietary lease or offering plan made it clear that the letter writer had exclusive rights to use the roof.

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