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Court Holds That Cooperative, Not Shareholder, Owns Interest in Roof Space Adjoining Apartments

In a dispute over ownership of roof space adjacent to a cooperative apartment, the court ruled that the Cooperative, rather than a tenant-shareholder, holds the right, title, and interest to the roof space. Fairmont Tenants Corp. v. Braff, 2018 N.Y. App. Div. LEXIS 4051, 2018 N.Y. Slip Op. 4083 (1st Dep’t 2018).

The proprietary lease defined the tenant-shareholders’ apartment as “the rooms in the building partitioned on the date of execution of this lease … together with … any … terraces, balconies, roof, or portion thereof outside of said partitioned rooms, which are allocated exclusively to the occupant of the apartment.”  The court held that this clause of the proprietary lease “is ambiguous because it is unclear from the lease whether the disputed roof area has been exclusively assigned to” the tenant-shareholders’ apartment.

Because the proprietary lease was ambiguous, the court “looked to extrinsic evidence, including the offering plan, which is a ‘controlling document’ that gives the proprietary lease meaning.”  In this case, “[t]he offering plan makes clear that there is no outdoor space allocated exclusively to [the tenant-shareholders’] apartment.”

The court also rejected the tenant-shareholder’s defense that the Cooperative had waived its right to the roof space, because “[p]aragraph 26 of the lease addresses ‘facilities outside the apartment,’ and under this provision, the Coop has a revocable license to that area.”  (It appears that the Court’s opinion contains a typographical error and should state that the tenant-shareholders had a revocable license.)  “Further, the Coop’s knowledge of defendants’ use of the roof space does not raise issues of fact regarding the coop’s waiver of a right under the lease in light of an unambiguous no-waiver clause.”

Likewise, the tenant-shareholder’s claim to ownership of the roof space by adverse possession was also rejected.  “It is undisputed that [the tenant-shareholder has] permitted workmen on the roof at issue in 2015, and that they have given access to the roof space to building staff from time to time.  Accordingly the court properly found that defendants’ use of the roof space was not ‘exclusive’ for any period of time prior to 2015.”  Finally, the tenant-shareholder’s “continued trespassing on the roof space entitles the coop to injunctive relief as the irreparable injury is the interference with the coop’s property rights.”