Roof-Top Rights

|October 4, 2010

Outdoor space is an attractive feature for any real estate purchase. Families look for homes with gardens and yards. Condominium buyers love when there’s a deeded or even shared garden. Roof-top decks are also very popular. But what happens when the roof has no specified use?  

A client in San Francisco recently asked me how to go about obtaining the rights to exclusive use of the roof for the purpose of a roof-top deck. We talked about the other shared features of the property. While the garden is a shared feature, the roof (currently with no real deck) is also a shared responsibility of the HOA regarding its maintenance and repairs. Sometimes monetary consideration is in order to obtain exclusive use or deeded rights. In this case a simple “trade off” of rights to features could be the easy answer.

In this three unit building, the lower unit has direct access to the garden. Those owners enjoy the benefit of this feature to its fullest. The middle unit has no “direct” access, but only has to go down one flight of stairs and voila. Now, the upper unit, being the furthest distance from the yard rarely gets to use the garden due to its inaccessibility. 

So, now the question about how to get the roof deeded or allow for exclusive use of the roof for the upper unit? Who would pay for the improvements? I asked if the owners were willing to waive their rights to the garden in exchange for roof rights.  That seemed fair. If the other owners were not willing to waive their rights to allow exclusive use of the roof to the owner of the upper unit I suggested splitting the roof.  Designate a section of the roof closest to the upper unit as exclusive use and another section of the roof to be a shared feature. That way the HOA becomes a partner in the construction and maintenance of the roof-top deck.

The matter must be addressed by the HOA. A clear and definite explanation of use for common/shared and exclusive use rights should be agreed upon by all members of the HOA. Lastly, make certain these changes in acceptable use of common areas are recorded in the CC&Rs. When it comes time for a re-sale there won’t be any questions about who has what rights to which features. 

 

Image courtesy of ArterraSF

 

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Dee Saroni

Dee Saroni

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