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Q. My condo wants to put in a roof deck, but some residents want to exclude renters from using it because they believe renters will behave less responsibly than owners. I’m not sure whether this is true or just a stereotype, and I’m concerned that it could hurt my ability to rent out my apartment if prospective tenants feel like second-class citizens. Also, I’d like to know whether it’s legal to discriminate among residents this way.
A. Good news: Our BrickTank experts think excluding renters from your roof deck is a horrible idea.
First of all, while renters are not a “protected class” under housing discrimination laws, this type of rule is legally shaky.
“Some condominium plans provide that tenants of unit owners are accorded the same rights as unit owners,” says BrickTank expert and real estate lawyer Eric M. Goidel.
Even if your condo plan fails to bestow explicit equal rights on renters, barring them from your rooftop Shangri-la is still a dubiously defensible proposition.
“A roof deck is one of the ‘common elements’ of a condominium,” explains real estate lawyer Jeffrey Reich. “It’s owned in common by all of the unit owners and all of the unit owners have equal access to it. If the unit owner has decided to rent his or her unit, and has complied with the requirements in the by-laws for renting, I don’t see on what basis the board would have the right to exclude the owner’s tenants from a building amenity that the unit owner partially owns, paid for and has a right to use.”
(Co-ops may be different, he acknowledges, because most proprietary leases permit a board to put conditions on sublets.)
Reich also points out a practical barrier to the application this no-trespassing rule: “Would a unit owner’s roommates be allowed to use the deck? Would it depend on whether the roommate is paying rent?”
Our real estate agents didn’t care for this ban either.
“A roof deck is a feature that attracts renters,” says Deanna Kory.
Real estate agent Jacky Teplitzky agrees: “In some buildings you charge tenants for using the gym, but you don’t prevent them from using it.”
Managing agent Lynn Whiting of Argo concurs that a keep-out policy could deter potential renters from signing a lease. She and Michael Wolfe of Midboro suggest addressing roof-deck abuse concerns with strict guidelines for using the outdoor space.
Wolfe also recommends adding security cameras and controlling access with biometric readers, card systems and the like.
Those who found the prospect of excluding renters most repugnant were the two board members (one co-op, one condo) who responded.
“You can’t exclude renters,” says Gregory Olsen, who sits on an Upper East Side condo board. “You end up having them feel like second class citizens and create tension in the building. Your condo/coop is supposed to be a community and discrimination against your neighbor is just not good policy—or nice, for that matter.”
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