Outdoor space is a coveted commodity in New
York City, and some people look for any way to assert that the area
outside their apartment is for their exclusive use. That is just
what happened at 401 East 86th Street, and while
the case, Fairmont Tenants Corp. vs.
Braff, is about the use of outdoor space, it also
reminds us of the relationship between the proprietary
lease and the offering plan. In addition,
it raises issues about when the plan becomes relevant, and it
reminds us that a cooperative has the right to
enforce its documents even if it looked the other way for
many years.
Michael and Gladys Braff own
the shares of Apartment 2FG at Fairmont Tenants Corp. The Braffs
asserted that they had the right to use and occupy the setback
portion of the roof adjacent to the apartment. The area was about
200 square feet with a gravel surface, and they accessed it through
one of the unit's windows. They apparently had been doing this
since the apartment was purchased
