Does a Co-op Penthouse Owner Have Exclusive Use of Roof Over Apartment?

The distinction between the roof over a penthouse apartment and the roof over the other apartments below the penthouse level may be physically clear, but it is not always equally clear whether a penthouse apartment owner has exclusive use of both areas.

A standard form proprietary lease for a cooperative apartment in New York City defines the “Demised Premises” – i.e., 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.” In an ideal scenario, there is an offering plan for the cooperative, and in the Schedule A contained therein or in floor plans, there will be a clear statement as to whether any apartment in the building has a terrace, balcony, roof or portion of a roof allocated exclusively to it. In some cases, however, there is no such clarity.

Without this clarity, the language contained in paragraph 7 of a standard form proprietary lease can be murky for a penthouse owner, particularly when it comes to whether such owner has exclusive use of the roof over the penthouse apartment, as distinguished from the roof of the building, located immediately outside the penthouse apartment. This lease paragraph states, in pertinent part, 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, subject to [certain limitations] . . . .”

The answer to the question of what roof space “adjoins” or is “appurtenant to” a penthouse had been suggested in case law, but only became definitive this past summer. In the June 20, 2018 decision issued by 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), the Court made a distinction between the roof space “adjoining and appurtenant to the penthouse unit ” − determining such roof space to be “that portion of the roof of the building which is on the same level as the floor of the penthouse unit” − and the roof over the penthouse unit. The Rushmore Court held that while the penthouse owner had exclusive use of the former, the owner did not have exclusive use of the roof over the penthouse. The Court reasoned that “the exclusive use of the penthouse roof by the owner of the penthouse unit is not necessary to give that owner usable enjoyment of the unit, just as the use of the roof of the building is not necessary to give the owner of the apartment units immediately thereunder usable enjoyment of those apartments.”

Prospective purchasers of cooperative penthouse apartments are well-advised to ensure at the outset to what space they are purchasing the exclusive right to use. It may be that the ability to construct a sun terrace on the roof over the penthouse is not an amenity included in the bargain.

Tracy Peterson is a Partner at Braverman Greenspun, a law firm dedicated to representing Boards of Directors and Managers of Condominiums and Co-ops in the metropolitan New York City area. Over the firm’s 50-year history, we have served as general counsel to hundreds of properties and developed broad expertise in litigation, transactions, leasing, financing, and the governance issues facing cooperatives and condominiums. One of the first firms in New York to specialize in this practice area, Braverman Greenspun provides some of the most sought-after counsel in the industry.