Robert Nislick By Robert Nislick
You own a unit in a Massachusetts condominium and serve on your association’s board of trustees. Your board takes seriously its responsibilities to maintain, repair, and protect the condominium property. One day, the board of trustees learns that a unit owner has altered, or will imminently alter, the common areas and facilities of the condominium.
The unit owner has decided to renovate his unit. In so doing, he makes changes to the common areas and facilities. Perhaps he wants a larger living room window. In order to install the new window, he cuts a hole in the building envelope. Perhaps your condominium building is a converted loft. It occurs to the unit owner that maybe he could have higher ceilings. He decides to remove the finished ceiling and joists in order to expose the space above. Perhaps he wants to make renovations within his unit. He applies to Boston Inspectional Services Department Building and Structures Division for a permit. In order to receive the permit, he needs to add fire sprinkler heads and tap into the building’s fire alarm system. Perhaps your condominium consists of townhouses. The unit owner decides that he needs more storage and erects a shed on the condominium grounds.
These are just a few examples of how condominium common elements can be altered or encroached upon by a unit owner. The unit owner’s motivation may be innocent, nefarious, or somewhere in between. His bottom line is that he feels that he can do whatever he wants with his property. He never asked for and never received approval from the condominium trust before taking these actions.
It is well established under Massachusetts law that management and control of the common areas is vested in the organization of unit owners, i.e. the condominium trustees. When a person purchases a condominium unit, although he owns the fee interest in his individual unit, he does not get the right to change, take away from, or encroach upon the common elements.
Under certain circumstances, the trustees may choose to grant a unit owner the right to alter or use common areas, and if that is the case, the trustees may grant an easement, or designate an exclusive-use limited common area. If that is the case, then both the board and the unit owner should make sure to carefully follow the requirements of G. L. c. 183A and the governing documents for the condominium when formalizing such an arrangement. Both the board and the unit owner would be well advised to seek their own counsel to negotiate and draft such any instruments that might be needed.
What should the condominium trustees do when they believe that a unit owner has altered, or may imminently alter, the common areas and facilities without board approval?
It is important for the board to inspect the unit as soon as possible. The master deed should provide the trustees with the right to inspect the unit on reasonable notice. The trustees and the condominium’s property manager will want to take photographs. If the unit owner refuses access, the board may view such a refusal as a failure by the owner to abide by the condominium documents. It may be appropriate to levy a fine against the unit owner until he provides access. If the trustees still cannot access the unit, then the board should probably file a complaint in Superior Court and seek a preliminary injunction which orders the unit owner to provide access to the trustees.
If the trustees discover that the unit owner has altered the common areas, then the trustees should take action to compel the unit owner to restore the premises to their original condition. The trustees are likely justified in taking a firm stance against the unit owner. The board cannot tolerate action by the unit owner which may jeopardize the soundness or safety of the condominium building and its residents. If a unit owner’s construction project places public safety at risk, then the board really has no choice but to act to abate this problem immediately.
Attorney Robert Nislick is a Massachusetts condominium attorney who represents condominium trustees and unit owners. Contact him today for more information.