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June 5, 2009
Roof Deck Not Up To Code
My wife and I are looking at a co-op with roof rights. The roof currently has a deck, which the sellers have disclosed is not up to code. Question: what are the chances that our lender will require us to remedy the situation before allowing us to close? What consideration should we take if we're thinking about making an offer? And finally, how much does it cost to build a modest roof deck (maybe 200-300 square feet) to code?
Comments
A better question would be: Can we afford the fine when the DOB does a random inspection?
Posted by: bohuma at June 5, 2009 10:47 AM
random inspection???? ROTFLMMFAO. You don't have to let the DOB in and never should.
This will likely never be discovered unless you have a nasty neighbor that you get into arguments. Can't answer as to whether the bank's appraiser will find it nnot to code. That's not really their job and its most likely that the appraiser is not totally up on all things code.
Posted by: daveinbedstuy at June 5, 2009 10:59 AM
It's impossible to say. Is it not up to code because it is a wood deck on a fireproof building? Or because the railings are not high enough or spaced improperly? or because there is no emergency exit? Some of those things are easily remedied others are not. But in any case, I do not believe that the NYC DOB has much interest in private roofdecks I really don't. There are so many things in almost every old house in Brooklyn that are not "up to code".
Brownstones are basically completely non-code complying. If you worry about things like that you need to buy in a brand-new building.
Posted by: sam at June 5, 2009 11:01 AM
I think the OP needs to ask someone in the mortgage business, like Adam Dahill. You could casually ask your bank as to what would be the effect if anything were fouind not meeting code without indicating knowledge of such.
Posted by: daveinbedstuy at June 5, 2009 11:07 AM
I would be most worried about weather you would be properly insured if something ever happened related to that deck if it's not a legal. Fire, Injury etc. If it were not up to code, you would be in serious financial and legal jeopardy. Especially if it's a row of houses, you cannot prevent others from walking over to 'your' roof.
Posted by: brokestone at June 5, 2009 11:38 AM
and to note, if you were really worried, stipulate that they remove the deck before you move in as part of the sale. Headache gone.
Posted by: brokestone at June 5, 2009 11:40 AM
The apartment may have roof rights, but does the building's certificate of occupancy allow for recreational use of the roof? It's a question that must be asked. If everything's not up to par, the seller at their own expense should remove the deck so as not to cause any mess with the buildings department or anyone else down the line.
Posted by: 5w30 at June 5, 2009 11:40 AM
Ask the seller what makes it not up to code. (Of course, follow up with your own due diligence, but they already told you that it is not up to code so it stands to reason they will tell you why.) Then you can go from there.
Posted by: Kris at June 5, 2009 12:16 PM
Thanks, all good things to know. We don't know exactly what the code violation. It is a wood deck that takes up about 1/2 of the full roof, all the way up to the edges, which sounds like a problem to me. It also looks like it sits directly on the roof. There is a fire escape and a proper stairway up to the roof, so at least it is accessible.
I hadn't thought of the question regarding the CofO. We'll have to check in with the board on that. These will be good things to discuss with our lawyer if our bid is accepted.
Posted by: bivouac at June 5, 2009 12:21 PM
What part of town is this place in? Some neighborhoods are easier than others frankly.
Posted by: LincolnSlope at June 5, 2009 12:27 PM
The apartment is in the South Slope. It's an 8 unit co-op.
Whatever happens, it doesn't seem like a show stopper. Worst case scenario, it is removed by the seller before we close, right? But we would just like to take that into consideration when negotiating the contract.
Posted by: bivouac at June 5, 2009 12:31 PM
If it is regular, untreated wood it can't take up more than 20% of the roof. If larger it has to be made out of some non-fireproof material.
Posted by: mscrochety at June 5, 2009 12:38 PM
The building inspector I used told me that wood decks can take up no more than 20% of the roof. So maybe that's the issue. If you want more coverage, you can have it, you just have to use a fire retardant material like fiberglass. Fiberglass is more expensive than wood.
Posted by: Kris at June 5, 2009 12:42 PM
We had such a deck on our building's roof. The unit went through two closings plus at least one re-fi without any attention from lenders. But a nasty neighbor did report it to DOB later, and that is a headache.
Posted by: uglyjohnny at June 5, 2009 12:50 PM
No one pays any attention to the 20% rule.
What the inspector wants is his own 20% rule.
If you get a cranky inspector at the DOB he will demand you make the deck handicap accessible. I try to tell you people time and again, the building code and the dob do not have cut and fast rules, they are a bureaucratic nightmare of the most dysfunctional kind. The only thing that works are the "Christmas bonuses" that every expiditer worth his salt delivers to the family of certain civil servants.
Oy, such naivette on this site!
Posted by: sam at June 5, 2009 1:48 PM
nasty, vengeful neighbors suck. a friend of mine had one call and rat out rooftop BBQ (illegal in NYC).
Posted by: Fjorder at June 5, 2009 1:50 PM
I believe mscrochety means 'fireproof material...' That basically boils-down to steel - though I've heard Trex is fireproof too. Anyone know about whether it's up to NYC code?
As for the 20% rule when building with 'non-fireproof' material, I've often heard the same but have never actually seen it verified.
What bivouac needs to do, first-off, is have a lawyer confirm that the co-op offering plan allocates the roof rights to their unit [which ought to be reflected in a bigger # of shares than other units - and a higher maintenance charge]. If the roof rights are part of the deal, then it's really up to the buyer & seller to come to an agreement: if the buyer is paranoid about the legality of the deck [which sounds both illegal & bad for the integrity of the roof - heavy, wooden decks sitting on the roof membrane are a recipe for disaster], then they should make removal of the deck a condition in the sale & have the roof itself inspected. The other option is to be cool & enjoy the fresh air!
Brokestone makes a good & scary point too, though a 'no trespassing' sign ought to give the deck-owner some level of protection from injury claims caused by illegal use of the deck.
Posted by: parkedslope at June 5, 2009 1:55 PM
After all this, not clear if it's your private deck, or shared? If the coop owns it and you have rights to is, worse that could happen is you'll be responsible for 1/6th. As far as the rest, appraisers are not usually experts on code issues.
Posted by: denton at June 5, 2009 2:40 PM
parkedslope: thanks, great advice. The broker made a point to mention that it is a private deck, with roof rights as part of the share & will be included in the sale. Our lawyer will be very clear on what we're expecting.
Personally I would like to keep the deck because we'd like to save on the expense, and it is quite nice, but I'd rather not court trouble, with the integrity of the roof or with the DoB.
Posted by: bivouac at June 5, 2009 3:52 PM
I bought my co-op with its existing all wood deck on top of steel supports and had no problem closing on the co-op or the commercial condo under the roof under the deck.
Posted by: bessie2 at June 5, 2009 5:48 PM
Doesn't the entire apartment, including the deck, actually belong to the Co-op? You're buying shares and the right to occupy the apartment, but does that make YOU responsible for the deck?
Posted by: Bob Marvin at June 5, 2009 6:02 PM
Bob - the typical arrangement is that the person with roof rights is responsible for any damage caused to the communal property [the roof itself] due to private use of the roof.
Again, I'd warn anyone against placing a deck directly on the roof membrane: it's a 'pay now or pay later' situation.
The best short-term solution that I could see is having Bivouac get a written agreement from the co-op board that when the time comes to maintain/replace the roof, the old deck will be removed & replaced by a properly sized & engineered one built on joists attached to the roof's parapet walls [i.e. suspended off the rubber roof surface]. Of course, the removal and new construction would be at the owner's expense - but at least that would spare you from being responsible for paying for all the inevitable problems caused by a leaky roof!
Posted by: parkedslope at June 5, 2009 6:27 PM
parkedslope,
Does this apply even if the OP buys an apartment with an EXISTING roof deck? The Co-op board knows, or should know, of it's existence and has permitted it to be built and to remain in place.
Posted by: Bob Marvin at June 5, 2009 6:56 PM
parkedslope: thank you, that advice is invaluable and sounds like a great way to go.
Posted by: bivouac at June 5, 2009 6:59 PM
Bob - yes: the co-op should accept the consequences of everything that's been done up-to-now and agree to spread the cost of any existing damage to the roof to all the current shareholders.
What I'm suggesting is that once the new buyer gets things in-writing and the co-op legally acknowledges problems with the existing deck, when the roof eventually has to be repaired, they all need a game plan for what to do at that point.
A lot of co-ops are very loose about these things, but personally, I wouldn't buy into a building that's so careless - the very existence of this deck is a big red flag... what's worse, a future buyer could move-in and cause unforeseen trouble for everyone down the road.
Roof decks are great, and I'm being Mr Doom-and-Gloom, but having had ceiling leaks in other apartments & having shopped-around specifically for a place with a roof deck myself, I can tell you that it's best to be careful about what you buy into.
Anyway, good luck Bivouac - and I hope you wind-up in a great place!
Posted by: parkedslope at June 5, 2009 7:27 PM
There are interesting answers to roof decks at this brownstoner archive (Apr. 13):
http://www.brownstoner.com/forum/archives/2009/04/building_a_roof_5.php#comments
Type "roof decks" in the brownstoner search box for more ideas.
Posted by: BklynSoFar at June 5, 2009 8:01 PM
Interesting comments; but a man convinced against his will--is of the same opinion still...
Bivouac sounds somewhat in love w/this roof deck, and wants it. Just so. I agree w/views above-- except I wouldn't be surprised to learn that the co-op initially turned a blind eye to the deck. And, why would the (current) board agree, in writing, to absorb the losses for a private roof deck that is not up to code? This sounds very cozy and comfortable-- until the roof leaks/collapses, mold invades, or someone gets hurt (God forbid). If this deck is wood, and seated ON the roof; it's a problem. Yes, private outdoor space in the city is a slice of heaven. But this beautiful deck was built by a semiskilled handiman. Re-do the deck; and do it right. Use the lighter weight materials and seat it correctly. You'll get a larger deck, and be able to landscape/irrigate/light/ and enjoy it. It will cost a bit; but not a staggering am't. Have the seller remove the wood--and/or reduce the price accordingly. Then, you can (all) sleep well @ night; comfortably, under your deck. No worries it will land in bed with you--
Posted by: Brooklander at June 6, 2009 3:52 AM
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