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Adam Leitman Bailey, P.C. Gets Back Terrace Space Belonging to Client

Adam Leitman Bailey, P.C. was retained by the unit owner of a new construction condominium in upper Manhattan in connection with a dispute concerning the size of the unit owner’s terrace. In particular, the amount of “as built” terrace area owned by our client was approximately 85 square feet (SF) larger than the area that the Condominium’s Board of Managers was permitting them to use. Adam Leitman Bailey, P.C. jumped into action to assist the unit owner in getting back the terrace space that they rightfully owned.

The first step was to determine how much terrace space our client was entitled to. Accordingly, Adam Leitman Bailey, P.C. began by reviewing the Condominium Declaration and amendments thereto, the Condominium Offering Plan, and our client’s Contract of Sale for the apartment to see what each of them said, respectively, concerning the size of the terrace space. In addition, Adam Leitman Bailey, P.C. engaged an expert architect on behalf of our client to inspect the actual as-built terrace space available for use by our client, as compared with the representations of the terrace space allocated to the apartment in the Condominium Declaration and Offering Plan.

The Offering Plan represented that the terrace was 785 SF, but the Condominium Declaration represented that the terrace was 814 SF. And, making matters more complicated, there were subsequent construction changes made with respect to the configuration of the bulkhead on the building’s roof, resulting in a different “as-built” allocation of space for the apartment’s terrace than what was represented in both the Declaration and the Offering Plan. The actual “as-built” terrace square footage amount was 750 SF. The “as-built” condition (750 SF) would be the governing square footage amount, as certain construction changes are permissible under the Offering Plan.

However, for some unknown reason, the Board was only permitting our client to use 665 SF of the terrace. Approximately 85 SF of the terrace space belonging to our client was blocked off by the Board for common use of all unit owners.

Therefore, Adam Leitman Bailey, P.C.’s next step was to engage in discussions with the Board to get back the space that our client legally owned. After lengthy negotiations with counsel for the Condominium Board, Adam Leitman Bailey, P.C. was able to secure a settlement agreement that permitted our client use of their full terrace space – all 750 SF – in perpetuity. Adam Leitman Bailey, P.C. also required that this settlement agreement be recorded in the City Register’s Office to ensure that it “runs with the land” and no one will ever be able to challenge the terrace square footage in the future.


Rachel Sigmund McGinley represented the client in this matter.

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