Ripped up Roof Deck

    by

    Came home from work to see that my landlord had removed our deck (that he installed) because of water damage in the unit below. He stated that it won’t be replaced.

    This was a major selling point when we moved in and we’re sad to see it go.

    Do I have any rights here as a tenant?

    27 Replies

    1. rh, might be a daft question, but why can’t you have a plastic chair on the tar roof? I have a lounge chair on mine, but will remove it if I’m doing damage to my room.

      Ta.

    2. I would weigh whether or not you want to stay there without outdoor space.

      Then, find out if the landlord will let you up there at all. If there isn’t any kind of protection on the roof, he probably won’t. In that case I would approach the landlord and request a reduction. If the landlord wants you to stay, they might consider it.

      If you threaten any sort of legal action, the landlord could simply not renew your lease when it is up.

      From a landlord point of view, the headaches and liability of renting an apartment with a roof deck just isn’t worth it. I would rather charge less rent. Or find another tenant.

      But since the apartment was advertised with outdoor space, it isn’t unreasonable to ask for a rent reduction.

    3. You can’t get it back legally, that is.

      If the landlord put it in, and it is illegal, he may very well have known that when he put it in, and did so anyway, either because he was living there and wanted to use it, or wanted to use it to get more rent from tenants.

      If he’s the type who doesn’t care whether it is legal or not (and my guess is that he is – I’d never build an illegal deck), when faced a negotiation for a potential rent reduction, he may prefer to rebuild it, legal or not.

    4. I doubt the lease mentions the deck at all.

      Of course, IF the deck is an illegal one (though I would not assume that from a picture), you can’t get it back. But that doesn’t mean you can’t negotiate a rent reduction.

    5. Boy oh boy, what a can of worms. It seems as though everyone here brought up the issues in play. To me it seems no win for you, the tenant, at least insofar as getting back the deck.

      People are right to suggest examining the lease for any language that states you have access to/ are renting the space with a deck. And what are the remedies if the deck is removed/ or is there language stating that the deck can be removed with no effect on the rent? Anything is possible, I would read it carefully.

      The deck appears to be one that is not code, and therefore was not approved to be there, and an inspection or a complaint could have led to its removal. Again, does the lease provide a remedy to the tenant in such an event?

      The gas grill in the picture – hard to tell, but if that’s a grill with a propane tank, it is definitely not permitted on that roof or roof deck.

      So my take is that there are the issues of whether the deck is/was allowed to be there in the form it was in, what kind of deck would be allowed there and what would be required to accomplish that, what rights you have to a rent adjustment due to diminished services – even though they might not have been legally provided, what your best options are.

    6. And, all you “check your lease” folks should know…there are many items in standard NY rental leases that are totally unenforceable under the law.

      And all laws that apply in landlord/tenant cases are not covered in leases – there’s a whole body of laws and cases that apply – they aren’t all in your lease.

    7. I wasn’t suggesting suggesting starting a legal battle, going to court, or pumping anyone up – but merely finding out from someone actually knowledgeable what one’s rights are (tenants do have some rights, even in non-stabilized apartments). That’s always good advice. As well as is finding out what options (negotiating strategies, etc.) are possible. That’s worth a few bucks to find out from someone who actually knows.

      And, I’ve known many people who lived in rent stabilized apartments that didn’t know it at first – many landlords charge a market rent, and the tenant only later finds out the apartment is actually stabilized, and has a legal regulated rent lower than what is currently being charged. Which would also mean other regulations applicable to stabilized apartments would apply.

    8. fsrq pretty much lays it out. You need to be practical. See what you can get in rent reduction. You will not win in court; you will just make yourself miserable. It’s too bad though. And of course, if a deck means a lot, see what you can find elsewhere and work something out on the lease with the landlord. Stay away from court, really.

    9. I’m more concerned about the people next door, with their plastic blow-away chairs sitting directly on that tar roof.

    10. As I always say to tenants; read your lease. The deck is clearly illegal, but does it say exclusive use of a roof deck is included? If so, you might make a plea for rent reduction, but it sounds like you want a deck rather than a reduction. If the landlord is stupid enough to make an illegal deck a selling point he may not be aware of the deeper issues being discussed here, and you could tactfully make your case for a reduction. If there is nothing in the lease (or even if there is, but you still want a deck) I suggest moving to another place with a legal outdoor space and a more responsible landlord. Let this be the landlord’s problem and not yours.

    11. good point Arkady, astroturf would only work for sunbathing. A chair would go right through it. And as for fire code issues, a gas grill on a roof deck like that would also be illegal. One nosy neighbor calling 311 and the jig would be up.

    12. there is no way that roof deck was legal. if the fire marshall saw that, he would have forced him to remove it. with all that weight out there I’m sure that’s what led to the leaks over time. did you climb out your window to get there? You probably should get a rent reduction if you say your paying for it, but who knows.

    13. FLH – That’s asking for trouble. Astroturf does nothing to protect structure – you have to even out thepressure exerted by chair legs, bbq, etc.

    14. Read your lease; I wouldn’t be surprised if there is language there protecting himself.

    15. fsrg, you’re right to call BS on brokelin for pumping up the prospect of legal remedies. Regardless of rent regulation, tenant has no legal leverage unless use of the roof deck is in the lease.

      Like most situations, you’re better off working it out rather than lawyering up. If you’re bummed out about the loss of the roof deck that helped sell you on the place, ask LL to (voluntarily) knock a few bucks off the rent. If you’re really bummed out and want to move, ask for a lease surrender agreement

    16. brokelin – you seem to miss the reality that if this building is not regulated, the tenant (who you are now pumping up with nonsense about getting a lawyer and tenants rights) has essentially ZERO leverage.

      Try being practical….the most the tenant (in any case) could get is an allowance for loss of rent for the loss of use of the roof deck (which btw would probably exclude the months necessary to do the required roof repairs),

      how much do you think that loss is worth (to a Court) – the roof can only be used in nice weather- 6mo a year and it is far from necessary for habitability. If a court thought it was worth $100 a month (for 6mo) it would be alot….

      So what do you think this tenant is going to do (in a non-regulated apartment) to collect a few hundred bucks – start a legal battle with his LL???? Guess what….the LL will simply not renew the lease. By the time this thing got adjudicated, the tenant would be out of an apartment and out at least as much $ as he’d be able to collect….i.e. its a pointless exercise.

      Now if the apartment is regulated, it might be worth a shot simply because then the tenant would have to be offered a renewal (at a legally determined rent) but otherwise everything you talked about above is totally not realistic.

    17. Based on that picture, and what appears to be the property lines/ fire escape, that wooden deck was an illegal construction to begin with, and couldn’t be legally replaced. You might want to just get some astroturf at Home depot and lay that down over the roof membrane to protect it. Insta-deck.

    18. If it isn’t in the lease–fugetabout. If you don’t like it–move & buy your own place.

    19. You an also check with an attorney who knows landlord/tenant law. A way to get a cheap consultation with an attorney who specializes in any area is to call the lawyer referral hotline of the association of the bar of the city of new york – go to abcny. com or org, I forget which. For something like $35, last time I looked, you can get a half hour consult, which should answer your question definitively, and let you know your options for what you can do. Have used this service, and referred others, always with good results. I’d do this if I were in your position, if I couldn’t find a definitive answer from tenants rights articles.

    20. Don’t necessarily believe what you read here – check with a tenants rights orgnaization.

      It is quite possible that amenities provided need to be continued to be provided whether or not it is in your lease (which, if so, would give you an stronger argument for reduction of rent, which argument you already have since it was something that was a selling point and you clearly used it; and it might even give you an argument for having him rebuild it, since a deck is what you really want.)

      Bummer, though. You definitely need to impress upon him that it was why you rented the place, and that he’s changing the agreement by not rebuilding the deck. I see it as akin to having the roof cave in in one bedroom, and him closing off that room, reducing your sq. footage, rather than fixing the ceiling – while that may not be the case legally, that is the feeling of the case in reality.

      If he’s just too broke, ask if you can rebuild it – you can always try to sell the materials to the next tenant. (Though I’d prefer it if he rebuilt if I were you – so he can’t blame your construction for any future leaks.) If he has been told that the presence of the deck on the roof contributed to the leaks, you need to try to get him to understand that there are some deckbuilding methods that are less likely to impair a roof than others – but you may not be able to convince him to rebuild.

    21. It was advertised w/ deck, but I don’t think it would be in the lease. If anything it may just say “outside space,” which we technically still have. I’ll need to check after work. Thanks for the advice guys.

    22. Is there any reason to believe that the water damage was caused by the roof deck? If the landlord thinks the damage was caused by you, that will affect the conversation.

    23. You can express your dismay and ask for a rent reduction (do your homework and find comps), but I would guess the LL is feeling pretty pained about the costs to repair the top unit and remove the deck. When you ask, try to appear sympathetic, even if you don’t really feel that way.

    24. If use of the deck isn’t in the lease you have no rights. If it were advertised w/ deck you could probably go after some kind of satisfaction but it’d cost you.

    25. Essentially if you are in a rent stabilized building you are entitled to a rent reduction, otherwise it is a contractual issue, handled by your lease and if the LL doesnt voluntarily reduce your rent – your probably out of luck.