Access to and use of the roof of a residential coop is a much sought, cherished, and protected amenity. As a recent case illustrates, a claim to “exclusive” enjoyment of space on a roof can result in complicated and contentious litigation.

Nina Neivens brought an action individually and as temporary administrator for the Estate of Mary Neivens, her late mother, against 24-26 E. 93 Apts. Corp., a residential coop. She sought declarations regarding her rights to exclusive use of the roof of the coop’s building as the proprietary lessee of apartments 10AB and 10CD.

Over 30 years ago, the coop gave Neivens the right to build temporary greenhouses on the roof immediately above the two apartments that were directly accessible from inside those units. She claimed that the apartments were penthouses and sought a declaration that she had exclusive use of the entire rooftop area outside of the temporary greenhouses. The coop countered that Neivens’ apartments were not penthouse apartments; the proprietary lease only afforded appurtenant rooftop space to penthouses; and the amendment to the offering plan that granted Neivens the right to construct the temporary greenhouses did not include the contiguous rooftop space.

In 1984 and 1985, the building was converted to cooperative ownership. An Offering Plan was filed with the New York State Department of Law and became effective in May 1986. The Offering Plan identified, among other things, the apartments in the building and the shares allocated to them. Some of the units listed contained a designation “G” for garden use or “T” for terrace… But none of the apartments were designated as penthouses.

Under the terms of the Offering Plan, the coop owned and controlled the common areas, including the roof of the building. The Offering Plan did not disclose any plans, nor did it reserve development rights for the benefit of the sponsor for any greenhouses or penthouses on the roof.

Nivens was the holder of unsold shares in the building, as successors-in-interest to shares Dennis Neivens (a partner in the sponsor, Mary Niven’s husband, and Nina’s father) previously held. Nina owned the 1715 shares allocated to and was the proprietary lessee of apartment 10CD. And both Nina and Mary were the joint owners of the 1720 shares allocated to, and are the proprietary lessees of, apartment 10AB.

The original apartments 10A, 10B, 10C, and 10D were combined into 10AB and 10CD. None of those apartments contained any designation of “G” or “T” and were not indicated as penthouses in the Offering Plan. Mary Neivens was a member of the coop board until 2011. Nina became a Board member in 2011 and remained a member.

The proprietary leases applicable to all apartments in the building defined “apartment” to mean:

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 of said partitioned rooms, which are allocated exclusively to the occupant of the apartment.

The paragraph entitled “Penthouse, Terraces, and Balconies” provided that:

íf 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 the applicable provisions of this lease and to the use of the terrace, balcony or roof by the Lessor to the extent herein permitted. The Lessee’s use thereof shall be subject to such regulations as may, from time to time, be prescribed by the Directors. The Lessee shall keep the terrace, balcony, or portion of the roof appurtenant to his apartment clean and free from snow, ice, leaves, and other debris and shall maintain all screens and drain boxes in good condition. No planting, fences, structure, or lattices shall be erected or installed on the terraces, balconies, or roof of the building without the prior written approval of the Lessor.

That paragraph also granted the coop a right of access to the roof to install and repair equipment.

In July 1989, at Dennis Neivens’ request, the sponsor submitted for filing a Fourth Amendment to the Offering Plan that authorized the construction of two greenhouses on the building’s roof for use by the owners of apartments 10AB and 10CD. The Amendment increased the number of shares allocated to apartment 10A from 1185 to 1295 and increased the number of shares allocated to apartment 10C from 810 to 920 (110 additional shares to each apartment for the use of the greenhouses). It attached a letter of reasonable relationship relating to this increase in shares from Leo Seitelman, a licensed real estate broker, stating that each greenhouse would be approximately 20′ by 20′ and that it was reasonable to allocate 110 additional shares to each apartment in connection with the greenhouses.

The greenhouses were constructed; each was accessible by an interior stairway inside each apartment, and each had doors that opened onto the roof. The roof otherwise was accessible through two public fire stairwells, one on the west and one on the east side of the roof. Neivens had plants and furniture inside the greenhouses and placed some furniture on the roof outside of the greenhouses.

In 2014, Neivens and the coop began negotiating the prospective purchase of the right to remove the greenhouses and construct permanent penthouses in their place. But the negotiations ended in 2017 without agreement.

In April 2017, Neivens filed suit for a declaration that the coop’s threats to revoke her exclusive use of the roof contravened the lease– and that she had exclusive use of the roof area appurtenant to both apartments 10AB and 10CD. She also sought to enjoin the coop from revoking her exclusive use of the roof and from converting it to a communal space.
The coop, in turn, asserted counterclaims for a declaration that Neivens was not entitled to exclusive use of the roof; money damages; and an injunction, based on continuing trespass with respect to the roof; and fees and costs as the prevailing party.

The coop moved for summary judgment dismissing the complaint and on two counterclaims. The coop argued that Neivens had no right to the exclusive roof access. Under the Offering Plan. The two apartments were not penthouses. And, in fact, there were no penthouse apartments in the building. The coop contended that the evidence demonstrated that the greenhouses were temporary 20′ by 20′ structures, not penthouses.

The coop argued that the lease only granted exclusive use of the roof to apartments with “a terrace, balcony, or portion of the roof adjoining a penthouse”, which the two units were not. The rooftop area outside of the temporary greenhouses was not “appurtenant” to the apartments. And the Fourth Amendment did not transform the apartments into penthouses. Instead, the Amendment simply gave Neivens the right to build “greenhouses” on top of her apartments and nothing more. To the extent that Neivens kept some personal items on the roof and claimed exclusively, the coop contended that such permitted use was simply as a licensee, which was revocable and had been revoked.

Neivens contended that the definition of the word “apartment” and the lease unambiguously gave her the right of exclusive use of the entire roof as appurtenant to the two apartments. And argued that the Amendment established that extra shares were allocated to those apartments for the purpose of constructing the greenhouses on the roof. Thus, she argued that those governing documents unambiguously established that she paid for and acquired the right to the exclusive use of the entire roof. Neivens also argued that the placement of tables, chairs, and a walking surface on the roof outside the footprint of the greenhouses demonstrated that she was putting the Fourth Amendment into effect. To the extent that any ambiguity was found in the governing documents, Neivens contended that the fact that the roof was accessed through doors from the greenhouses and that she had maintenance and repair responsibilities for the roof showed that she had the right to exclusive use.

Neivens argued that the counterclaim for trespass failed because she had established her exclusive right to use the roof and could not be a trespasser. The breach of fiduciary duty counterclaim failed because Mary Neivens had not been a member of the Board for at least six years, so there was no fiduciary relationship. And, as against Nina, there were no allegations that she breached any duty other than, and independent of, her duties as a board member– and the documents supported her exclusive right to use the roof. Finally, Neivens argued that the coop was not entitled to attorneys’ fees and costs but that, instead, she was entitled to such fees and costs as the prevailing party.

The dispute turned on the interpretation of the written agreements governing the apartments and the rights of proprietary lessees regarding the roof. Where a contract is unambiguous, its meaning was a question of law for the Court. An agreement is unambiguous if its language has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.
Where an action involves whether the roof area in question was (or was not) not part of a demised apartment, the controlling documents were the Offering Plan, building plans, and the proprietary leases.

The Court found that the facts material to determining the parties’ claims were essentially undisputed and turned on the interpretation of the governing documents — the Offering Plan, the Fourth Amendment, and the leases. The Plan identified apartments with terraces with a capital “T” and with gardens with a capital “G”– and apartments 10AB and 10CD lacked these designations. The Offering Plan did not designate any apartments in the building as penthouses.

The Fourth Amendment to the Offering Plan clearly afforded Neivens with only the right to build “greenhouses,” measuring 20′ by 20′ each and nothing more and did not mention penthouses. If the parties had intended to convert these two apartments into penthouses with the right to exclusively use the entire roof of the building, substantially increasing the amount of space solely available to the owners of apartments 10AB and 10CD, the Amendment should have expressly so provided. In addition, the additional space would have been calculated in the additional shares that were allotted to and paid for by Neivens, but it was not.

Neivens contention that the leases gave her the exclusive right to the entire roof was unavailing. Because apartments 10AB and 10CD did not “include a terrace, balcony or a portion of the roof adjoining a penthouse”, she did not have the exclusive right to use, occupy or enjoy the roof. While Neivens pointed to the definition of “apartment” in the preamble to the leases to support her argument, the Offering Plan, along with its Fourth Amendment, gave that lease provisions meaning and made clear that there was no roof space, other than the greenhouses themselves, allocated exclusively to the two apartments.

Neivens argued that the entire roof area outside the greenhouses was appurtenant to her apartments. The Court found that argument unpersuasive because appurtenances are incorporeal easements or rights and privileges which are essential or reasonably necessary to the full beneficial use and enjoyment of the property conveyed or leased. Mere convenience in the use and enjoyment of space does not create an appurtenance. Here, the roof outside of the greenhouses was not granted exclusively to Neivens in the leases, the Offering Plan, or the Fourth Amendment. And also was not essential or reasonably necessary to use and enjoy either the apartments or the greenhouses. The apartments were not connected to the rooftop area, and while the greenhouses had doors to the roof, they both were accessible from internal staircases in each of the apartments.

In addition, a rooftop is not appurtenant to an apartment unit located below it. The use of the rooftop area for outdoor furniture and storage was not essential to the use of the apartments below the roof or the greenhouses.

The external roof area was not included in the demised premises, and Nievens’ use was pursuant to a license. A lease grants exclusive possession of designated space to the lessee. In contrast, a license connoted only use or occupancy of the grantor’s premises and was revocable.

Here, Nieves did not have penthouse apartments under the governing documents and, by her own admissions, was actively negotiating the right to build penthouses atop the apartments.

The relevant documents demonstrated that Nievens had no right to exclusive use of the rooftop.

The Court granted the coop’s motion for partial summary judgment dismissing the complaint and declared that Nievens did not have a leasehold interest under the proprietary leases to occupy, use or enjoy the rooftop area outside of the greenhouses atop apartments 10AB and 10CD. And the coop had the right, title, and interest to the entire roof of the building, except for the area directly under the greenhouses atop apartments 10AB and 10CD.

The coop was also granted an injunction based on Nievens’ continuing trespass of the roof area outside the greenhouses.