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Q&A: Porch as Living Space

Q. I live in a three-flat condo. Before I purchased the second floor, the owner of the third floor opened up the wall to the porch, enclosed the porch, and claimed it as living space. It has since been cited by the city and must come down. The owner wants the first and second floor owners to pay 1/3 each for the cost for replacement of the wall, now claiming it’s a common element. We believe the cost is theirs entirely, since they removed the wall to include their enclosed porch as a living space. Who’s right?

                     —Enclosed in Controversy

A. “By not obtaining permission from the condo board nor complying with New York law, the third-floor owner makes any liability his—both financially and physically, as far as returning the space to its legal condition,” says attorney Adam Leitman Bailey, founding partner of the New York firm Adam Leitman Bailey, P.C. “There is no case law or any other decision that would support the third floor owner’s position. The violation most likely was placed on the entire building, but the owner should pay for the entire fine he or she caused.”

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