Rent Coach: I rented my apartment for the patio--and now I can't use it

Q. I've been subletting a two-bedroom co-op with a private patio on the first floor for two years.  The patio abuts my bedroom and is accessible through a large window as well as a locked gate that leads to the front of the building.  I decorated the patio and use it regularly, which my landlord is well aware of. 

Last week, my landlord and I got a letter from the co-op board president stating that I can no longer use the outdoor space.  The letter says that the space actually belongs to the co-op, not the owner of the apartment.

What can I do?  I love the space and wouldn’t have rented the apartment without it.

A. In a co-op, a corporation owns the building and typically the land that it sits on (including any outdoor space).  Owners, who are actually shareholders in the corporation, receive a proprietary lease for a specific apartment that entitles them to its exclusive use.  Unlike in a condo, shareholders do not receive deeds describing the property that they have purchased.   Instead, a document called the offering plan lays out what property belongs to each specific unit such as your outdoor space, terraces, private roof cabanas, etc.  

If the offering plan (or any subsequent amendments to it) does not show that your patio belongs exclusively to your unit, and/or if your landlord’s proprietary lease with the co-op doesn’t state that he has the exclusive right to use the outdoor space, then the board president likely has the authority to prevent you and your landlord from using the patio.  This is because the patio in fact belongs to the corporation and the board of directors has the right to control and manage the building for the co-op. 

Start by speaking to your landlord and asking if they believe that they do in fact own the patio.  If they know that it does not belong exclusively to their unit, there is no point in pursuing the issue further with the co-op.  At that point, you should refer to your lease with your landlord to see if it mentions the outdoor space. 

If your lease specifically gives you the right to use the patio, you can speak to your landlord about a rent reduction in light of the diminished value of your apartment. You might also have an argument that the landlord has materially breached the lease, which would entitle you to terminate it immediately. 

If your lease is silent as to the outdoor space, however, you will need to negotiate with your landlord and attempt to come to an agreement.

Alternatively, your landlord could negotiate with the co-op to attempt to buy the outdoor space or come to another arrangement.  He might even be able to convince the board to allow you to continue to use the space for the duration of your lease.  It’s always worth opening up the dialogue to see where it gets you.

Mike Akerly is a New York City real estate attorney, landlord, and real estate broker. He is also the publisher of the Greenwich Village blog VillageConfidential.   

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