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Is it okay to put a common roof deck near a private terrace?

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Q. I own one of several penthouse apartments on the roof of my condo building, with a small private terrace.  

Some residents want to develop the unused roof space adjacent to my terrace into a roof deck for the whole building. I feel that would impede on my privacy and the quiet enjoyment of my terrace--which was a major reason I bought this apartment four years ago.  

There is a safety issue too, as my windows would be easily accessible from the common space.

I have expressed my concerns to the board and the property manager, yet recently the board hired an engineer to assess the possibility of moving forward with the project. What are my legal options?  


A.   As far as stopping the project, you are probably out of luck, say our BrickTank experts.

Roof space that hasn’t been allocated for use by a specific owner is typically deemed a “general common element,” says real estate lawyer Jeffrey Reich.

Most condo bylaws let the board decide how to deploy such common spaces, and absent a specific prohibition about the common roof space, that’s exactly what your board is entitled to do, says Reich.

Depending on your own financial resources, you might consider offering to buy the common space from the building, or at least a portion of it to be used as a buffer between your apartment and the more public area, suggests Upper East Side board member Gregory Olsen. 

Also bear in mind that it's possible your concerns are exaggerated.

Kelly Giesen, an Upper West Side co-op board member who, along with some roof-level residents, helped plan her building's roof deck a few years ago, says the neighbors who were originally concerned found they had nothing to worry about when the project was finished.

"Noise is not a problem as rarely are there a ton of people out there, we have a six-person-per-apartment rule and do not allow parties, music or cell phones," says Giesen. "We also have a fob system so we know who is on the roof and three cameras so nothing gets crazy. We have extended the hours later and later without any issue."

As in Giesen's building, you might consider joining the roof deck committee yourself.

If not, "your best option at this juncture is to ask the board for regular updates in the planning/development process so that you have the opportunity to raise, and the board has the opportunity to address, your concerns regarding safety and privacy," says real estate attorney Robert Braverman.

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