Disputed garden - what to do?

[mschilton]

We live on the ground floor apt of a brownstone, which has a garden in the back. Our LR looks out directly onto the garden, and we have a door in the back for access. There is also a "fire escape" type staircase from the apt above us that leads to the garden.

We were looking specifically for a private garden, and when we rented the apt, we were told this was the case. (No mention of garden in the lease at all.) The apt above us was not used for most of the past 1.5 yrs we've been here. REcently, a new tenant moved in above us and claims the LL told them it was a "shared" garden. This is news to us! We obviously had no intention of sharing it when we rented it. There are also security and privacy issues, too.

Can the LL FORCE US to share the garden, even though there's nothing in the lease about it?!
Would appreciate ANY advice on how to proceed here!

[mschilton]

But the garden is directly in view of our living room (no security on windows) and kitchen, so there are privacy and security issues. Don't we have any grounds at all?
Can we at least force the LL to erect a wall dividing the garden so that we can minimize the privacy/security issues?

[Cranky Tenant]

If your apartment has a door that leads to the garden that should imply use of the garden is one of the apartment's ammenities.

On the other hand, a fire escape is a fire escape, and not necessarily a normal means of entering or leaving an apartment.

How does the other tanant normally access the garden? Do they climb out a window or is there a public hallway that also leads to the garden?

On the other hand, I think you can only expect slightly more privacy in an apartment that faces a garden than you would in one that faces the street. If you don't want others to be able to see what you're doing, put up curtains or some other means of blocking their view,

[ChrisG]

speak with the LL about this. if there is nothing in your lease about the garden, there is probably nothing in the other tenant's lease about the garden. while this wouldn't clear up the issue exactly, it may bolster your position.

up until now, who has been taking care of the garden? if the LL doesn't do anything, you may be able to gain leverage if you've been maintaining the space. regardless, you should have window guards, as anybody could shimmy down your fire escape and break into your apartment.

i also rent a garden apartment, and currently there is no rear fire escape on the building, so nobody else can access it. but the fire department recently told my LL that there needs to be one, so I may soon have the same problem. i wonder if there is any law differentiating a fire escape from a normal passage to something like a garden.

[mschilton]

Thx for the replies/suggestions. What is most annoying to me is that when we were looking at the apartment, it was represented to us that the garden would be for our exclusive use. We were looking specifically for a private garden so we would not have taken this apt if we knew we would have to share it, and certainly not at our current rent!

Now, we are faced with either moving (with all the broker's fee/moving costs, etc., not to mention the hassle factor) or having less of a garden apt than what we thought we were getting.

Do we have any recourse at all?

[Cranky Tenant]

If you were told the apartment had a private grarden when you rented it, and the other tenant is accessing it by climbing out a window, I would contact the LL.

If the other tenant has a door and a staircase that leads to the garden, that would imply it's not private.

Garden apartments often rent for more than similar apartments in the same building without a garden. If you're paying more than the other tenant this would also imply you're getting some amenity the other apartments lack.