Rooftop (Legal) Warfare on Washington Avenue

This was originally published on the SGR Blog.

A recent lawsuit resulted from an ongoing quarrel, between neighbors in a Washington Avenue co-op apartment building, over who owned a 2-foot by 20-foot strip of a shared rooftop terrace.

Justin Theroux (Apt. 2B) filed a complaint against Norman J. Resnicow and Barbara Resnicow, his downstairs neighbors (Apt.1A), for allegedly depriving Theroux of his right to enjoy his property.

Theroux contended that the Resnicows had engaged in a malicious and years-long harassment campaign that included frivolously challenging the boundary line between Theroux’s and the Resnicows’ shared roof deck.

Under the co-op offering plan, the Resnicows had the right to use the portion of the roof deck from the rear wall of the building forward to the boundary line, with the exception of a staircase, located at the rear wall of the building, that ran down from Theroux’s apartment to the deck. Theroux had the use of the stairs and the rest of the deck (from the boundary line forward to the parapet at the front of the building).

Supreme Court addressed the issue of whether the boundary line was at the bottom edge of the last step of the staircase, as Theroux claimed, or at the bottom edge of the staircase’s stringers (the frames on either side of the staircase into which the steps are fixed), as the Resnicows claimed. The stringers extended approximately two feet beyond the last step.

The parties disputed whether the 40-square-foot strip of roof deck extending forward from the last step to the edge of the stringers, and extending laterally the full width of the building, was on Theroux’s or the Resnicows’ side of the line.

Both Theroux and the Resnicows sought declaratory judgments from the Court to fix the location of the roof-deck boundary line. Theroux also brought a claim alleging that Norman Resnicow trespassed by placing some bricks on Theroux’s portion of the deck and repeatedly entering onto his property.

The word “stair” was inconsistently used throughout the offering plan. Section I of the offering plan used the words “bottom edge” and “stairs” in the plural to describe the dividing line of the roof. The descriptions under the Room and Finish Schedule of Apartments section used the words “bottom end” and “stair” in the singular and “lower edge” and “stair” also in the singular. Those terms were used interchangeably and were not dispositive on the legal location of the dividing line. Further, the word “approximate” included in these descriptions to establish the size in feet of the respective terrace portions was inadequate to determine the precise location of the boundary line.

The disputants proffered different and competing arguments as to the location of the boundary line.

Based on Theroux’s definition of “stair,” it was entirely possible that the offering plan referred to the bottom edge of the single last step on the staircase. Yet, it was also plausible for it to refer to the end of the staircase as proposed by the Resnicows and supported by the other definitions of “stair.” Contrary to Theroux’s contention, this location was not unreasonable and would not force him to trespass the Resnicows’ property; the offering plan gave Theroux the right to use the stairs, which included the stairs’ landing on the roof deck under the Resnicows’ definition.

Because neither definition of “stair,” nor the two proposed locations of the dividing line resulting from adopting any of these definitions, would create an absurd result, the offering plan was ambiguous. So — the undisputed extrinsic evidence was considered  by the Court to determine the line’s location.

Theroux argued that 15 years of custom and usage showed that the proper dividing line began at the bottom edge of the last step. He noted that a fence marked this boundary from 2000 to 2015 without anyone’s disputing the fence’s location. Theroux submitted that the fence was constructed with the board of directors’ approval and that the previous owner of Apartment 1A did not dispute the fence’s location. Further, he contended that the Resnicows did not dispute the location of the fence when they moved into Apartment 1A in 2004; when Theroux replaced the fence and decking along the same dividing line in 2005; or at any time between 2005 and 2015. Theroux claimed that the Resnicows disputed the roof terrace boundary only in 2015 as a retaliatory tactic because Theroux did not fix an alleged leak emanating from Theroux’s portion of the roof and affecting the Resnicows’ apartment.

The Resnicows asserted that Theroux could not claim custom to show that the proper boundary began at the bottom edge of the last step. The Resnicows noted that Theroux’s 2015, 2016, and 2017 plans to remodel the roof terrace and Theroux’s amended complaint showed different locations of the boundary. Moreover, the Resnicows argued that because they had a larger number of shares in the co-op and paid higher monthly maintenance charges than Theroux, they were entitled to a proportionally larger portion of the roof deck.

Where a written agreement is ambiguous, the applicable custom, usage, or practice may be taken into consideration to interpret the parties’ intent when they entered into the agreement.

The Resnicows conceded that they never contested the location of the fence in the 15 years before the dispute over the roof leak. In fact, the Resnicows’ own exhibits and memoranda demonstrated that Theroux at all times intended to replace the roof deck in the same location where it was previously installed for 15 years: at the bottom edge of the last step of the staircase. Therefore, the 15-year old custom was undisputed evidence.

Further, although the design and architectural plans for the new roof showed  different measurements, they were only initial remodeling plans on the aesthetics of the terrace and the differences in dimensions were minimal. The plans displayed  a roof deck measuring 11′ 6¼,” whereas Apartment 2B’s share of the roof terrace would be 11′ 8″ if the boundary began at the bottom edge of the last step of the staircase. This less-than-a-two-inch difference did not come close to the approximate 20 inches that the Resnicows were disputing by claiming a dividing boundary at the endof the staircase stringers.

In addition, the Court would not interpret the contract to include terms not within the written agreement. And nothing in the offering plan indicated that the division of the roof hinged on the number of shares or dollar amount paid to cover maintenance charges.

The undisputed location of the 15-year-old fence and roof-terrace boundary showed custom and practice that the parties’ understanding of the offering plan was for Theroux to own and use the portion of the terrace from the dividing line starting at the bottom edge of the steel step to the rear wall of the building. That location of the dividing line  was the most consistent and closest interpretation of the offering plan.

Theroux argued that Resnicow trespassed onto  his property by repeatedly placing bricks along the width of the terrace to mark the boundary line the Resnicows claimed was the correct one. Additionally, he claimed that Resnicow trespassed multiple times in 2017 when he entered Theroux’s roof terrace, as shown by the images from Mr. Resnicow’s security camera depicting Resnicow over the brick boundary line and onto Theroux’s property.

Theroux claimed that he informed Resnicow that he was not entitled to enter Theroux’s roof terrace but that Resnicow continued to trespass. Theroux eventually filed a motion for preliminary injunction to prevent Resnicow from trespassing again.

The Resnicows did not deny placing a row of bricks along the north edge of the staircase stringers. They claimed that the purpose of doing so was visually to communicate to Theroux the alleged proper demarcation of the roof terrace boundary line. Theroux contended that even if the dividing line were located at the bottom end of the staircase stringers, Resnicow still committed trespass because the rear edge of the bricks was aligned with the end of the staircase stringer, the bricks extended past the stringer onto Theroux’s property.

The Resnicows argued that even if the bricks extended a few inches past the stringers, this minimal encroachment did not amount to trespass. But the Court held that even a minimal invasion of another’s property constitutes trespass. And it was undisputed that the bricks extended a few inches onto Theroux’s property on eitherlocation of the boundary line.

The Resnicows claimed that such a de minimis encroachment was not trespass.

The Resnicows also argued that the photos showing Resnicow on Theroux’s terrace were explained by the Resnicows’ right to trespass onto Theroux’s property to abate the nuisance that he leak created. They submitted that the leak seriously interfered with their enjoyment of their property because the water damaged their apartment and generated mold.

The Court disagreed. A trespass may be justified when there is a reasonable necessity to prevent serious harm to trespassers, their land, or their belongings. The Resnicows did not meet that standard.

There was no evidence that the leak was a health hazard, caused serious harm, or created an emergency. The Resnicows complained that the leak produced mold that adversely affected their health. Mr. Resnicow claimed that he was on a daily dose of a steroid inhaler as a result of the leak. But they did not provide sufficient evidence to establish that the mold issue posed a serious and impending danger that warranted the acts of trespass that Resnicow committed.

The Court concluded that no material issues of fact existed, because the evidence established, as a matter of law, that the boundary line began at the bottom edge of the last step of the staircase. Theroux was thus entitled to summary judgment on the parties’ claims regarding the location of the boundary line. And the Court also held that Resnicow’s repeated entries into Theroux’s property constituted trespass, also as a matter of law.

The location of the boundary line of the roof deck, which could not be determined from the ambiguous terms of the offering plan, was determined by examining the extrinsic evidence and the parties’ custom and practice showed their understanding that the boundary line between the two portions of roof deck was located at the bottom edge of the last step of the staircase (as Theroux claimed) — not two feet further forward at the edge of the staircase’s stringers (as the Resnicows claimed).

The Court found that  Resnicow was liable for trespassing on Theroux’s property. And consideration of the issue of damages (if any) was reserved for trial.

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