How to Keep Tenants Off Roof, Minimize Liability

Hot temperatures during summer and early fall months make it tempting for tenants to go up on the roof and sunbathe, barbecue, or just cool off from their hot apartments. Unfortunately, allowing tenants on the roof of your building can cause you many problems, such as code violation citations and liability for property damage and injuries.

For example, tenants' furniture could cause damage to the roof and your insurance company may decide to deny coverage when you submit a claim, because your roof was open for such purposes. Another big concern is liability for injuries to tenants, guests, or third parties from falling objects and accidental falls. There may be no railings or other safeguards, and a bottle or other object could be thrown off or kicked off the roof.

If roof access is not a required service and you don't account for it in your leases, it is in your best interest to deny tenants access to your building's roof to minimize liability. We will go over the specific laws that cover roof use and give you tips on how to ban tenant access. We will also provide you with Model Letter: Prohibit Recreational Use of Roof, that you can send to your tenants to help you implement your ban.

Roof-Use Violations

You can get hit with several violations because of roof use by tenants. Three laws that impose violations for roof use are:

Housing Maintenance Code Section 27-2010. Under this law, the owner of a multiple dwelling must keep the roof clean and free from dirt, garbage, filth, and other offensive material. Since you are responsible for keeping the roof clean, you shouldn't allow tenants to store anything on the roof. If a tenant is storing things on the roof that block the exit-stairwell bulkheads or obstruct the path across the roof to a fire escape, you may be cited for a hazardous violation. You may also be cited if a tenant is storing items on the roof that could be blown off or places furniture that is not fireproof on the roof.

Multiple Dwelling Law (MDL) Section 78. This state law requires owners of multiple dwellings to keep all roofs in good repair. This means that you, as the owner of a building, are responsible for seeing that the roof is not damaged by items that tenants might bring onto a roof, such as outdoor furniture that makes cuts or holes in the tar paper or overwatered plants corroding the roof surface or causing leaks in the roof.

But the tenant is also responsible for a violation caused by his own willful act or the acts of any member of his household or guest. While a tenant who causes the damage shares responsibility with you, you can still be cited for a violation of this section and be fined up to $500, be imprisoned up to 30 days, or both for the first offense.

New York City Fire Code Section 307.5. The Fire Department forbids anyone from barbecuing on a combustible surface such as the roof, because it creates a fire hazard. Specifically, the Fire Code prohibits anyone from operating a barbecue within 10 feet of any combustible material or building surface. And the roof is classified as a combustible surface in a residential space.

How to Bar Access

To prevent violations, exposure to liability, and roof damage, you should consider barring your tenants from access to your roof. However, if you have allowed roof access for many years and decide to block access to the roof, your tenants may consider this a reduction in services and ask the Division of Housing and Community Renewal (DHCR) for a rent cut. From prior DHCR decisions, the key deciding factors seem to be whether the tenants' leases provide for use of the roof and whether formal roof amenities such as a roof garden or deck, and safeguards such as railings exist. If the roof is covered in tar with no formal facilities for tenants' use, then roof use will probably not be considered a required service.

Suppose you have not allowed tenants roof access in the past, but tenants are circumventing the rules anyway and going up on the roof. You should object to the tenants' use of the roof before it could possibly be misconstrued as a required service. However, you can't be a watchdog 24 hours a day to keep tenants off the roof. And despite what you might say, tenants tend to go up on the roof anyway. To deal with this problem, here are some tips to prevent tenants from using the roof.

Tip #1: Write letter to tenants. Let tenants know that they cannot use the roof for any recreational purposes, and give reasons. Cite the personal danger to tenants and their guests, the code regulations requiring them to keep items off the roof, as well as the physical damage they can cause to the building. You can use our Model Letter: Prohibit Recreational Use of Roof to inform your tenants of the laws and help you initiate your formal ban.

Tip #2: Have super inspect roof at least once a day. As part of his daily routine, have the super or maintenance person go up to the roof at least once a day to see whether anyone is up there. If he catches tenants, have him politely ask them to leave, taking all belongings with them. He should check the roof at different times each day, so that tenants can't predict when it will be clear for them to occupy the roof. Given enough disruptions, tenants will be discouraged from lugging their beach chairs and towels to the roof, just to have to lug them back down the stairs again.

Tip #3: Install alarm on roof access doors. All roof doors must be self-closing. But the door cannot be self-locking. It must be fastened on the inside with movable bolts, hoods, or a lock that doesn't require a key to open it from inside the building, according to MDL Section 50-1.

Although you can't lock the door to the roof, nothing in the law says that you can't attach an alarm to the door, so that anytime someone opens the door an alarm sounds loudly and continuously.

Tip #4: Post notice. Even though you sent a letter to tenants explaining possible code violations and dangers of roof access, you should also post notices in conspicuous places, such as the entrance to the stairs to your roof and at the roof-access doors. The notice serves to remind tenants of the contents of the letter and to give notice to guests who may not have seen the letter.

In the notice, state that tenants cannot use the roof as a place to store any personal belongings such as bicycles, boxes, tools, recreational items, flowerpots, plants, clotheslines, furniture, or any item whatsoever that may dirty or clutter the roof, or obstruct passage onto or across the roof.

Also state that tenants may not use the roof for any recreational purposes, including but not limited to sunbathing, barbecuing, drying clothes, or any other purpose whatsoever, for which the roof is not intended. Doing so may cause injury to them, other persons, or to the building structure.

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