Ask Real Estate: If My Co-Op Neighbor Has Basil on Our Common Roof, Then I Want Some

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Q: I live in a 120-unit, prewar co-op building on the Upper West Side with a roof deck shared by all residents. Someone has a very large basil plant, which has been there for years. It now has a sign on it stating, “Do not cut, plant belongs to …,” with the apartment number listed. If the roof space is shared, shouldn’t the basil plant be shared, too?

A: The roof belongs to all the shareholders, and they should all be treated equally in how the space is used. Does that mean that the owners of all 120 apartments should get to snip pieces of one person’s basil plant? No. Think of the roof like a shared bike room. Just because you store your bike there doesn’t mean your neighbor can take it for a spin, or use your helmet. The same concept applies to the herbs.

“If I had a sign on my bike saying, ‘nobody touch my bike,’ there’s really nothing wrong with that,” said Steven D. Sladkus, a real estate lawyer and a founding partner of the New York City law firm Schwartz Sladkus Reich Greenberg Atlas.

At the same time, there are limits to how you can use a common area. You can’t put your sofa in the lobby just because the area is communal. Assuming no one else has plants on the roof, the sign points to an inequity, reminding everyone that this shareholder has usurped a part of the common area for personal use. No one should get special treatment, and a lone plant occupying part of a common area for the sole benefit of one shareholder implies that someone does.

“You can’t just commandeer a common area,” Mr. Sladkus said. Depending on the rules, the board could force the shareholder to remove the basil.

However, the note implies that shareholders like the plant enough to eat it. Perhaps, rather than get rid of this one, there should be more of them. Edible rooftop gardens are increasingly popular in New York. Take advantage of the trend and approach the board with a modest proposal: Ask that it set aside space for shareholders to grow their own herbs or vegetables in pots or raised beds, if feasible.

Residents could tend their plants, and enjoy the bounty. But even with such a garden, shareholders would still have to respect each other’s plants and not sample the harvest without permission. Your neighbor’s “keep off” sign on the basil plant may disappear once other people have plants, too, and the rules are clear for everyone to follow.

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