Picture this: A condominium unit owner is sitting on her deck overlooking the bay, sipping a martini. Let’s call her Martini Lady. She has a gorgeous view of the Newport Bridge and is relaxing. That is, until her upstairs neighbor, who is an avid bird watcher — let’s call him Binocular Man — starts taking measurements to build a cantilever deck above her. Gone will be her un-shaded, beautiful views of sunsets and bridges, and because the proposed upper deck looks into her living room below, say goodbye to privacy.
Whether you are a unit owner asking for permission to extend a deck, or, in this case build a deck over common elements or someone else’s limited common elements, or whether you are a board considering the request, careful study of the condominium law and use of common sense is critical to avoid exposing the association to expensive litigation.
Addressing the Request
All unit owners share in a percentage ownership interest in the common elements of a condominium.
Common elements are defined by the Rhode Island Condominium Act (“the Act”) as “all portions of a condominium other than the units.” Portions of the common area1 that are for the exclusive use of less than all unit owners, are considered limited common elements, although they are still owned by all unit owners. Porches, decks, and balconies are some familiar examples.
The Act states that it is within the powers of the association to “regulate the use, maintenance, repair, replacement, and modification of the common elements.” As a general rule, if a common element is to be changed to a limited common element, it must be done by an amendment to the declaration.2 Here, Binocular Man’s proposed deck will in effect transform the common area space above the Martini Lady’s lower deck into limited common area. In our opinion, this would take a vote of the unit owners to amend the declaration.
Pursuant to the Act, most amendments to the declaration require a 67 percent vote. The declaration may specify a greater majority to amend the declaration, and a smaller majority may be required only when the units are restricted to non-residential use. Any amendment that changes the use to which any unit is restricted requires 100 percent unit owner approval. Let’s say that no one likes our Martini Lady so they vote to amend the declaration, giving the board the power to authorize the change for the benefit of Binocular Man. Does Martini Lady have a right of action? What of the board’s obligation to her?
Power vs. Right
As stated above, the association has the power to regulate the use of the common area. The board, however, has a fiduciary obligation to all unit owners and is statutorily bound to exercise good faith in the carryout of this and all other powers. A person harmed as a result, such as Martini Lady, has recourse under the statute and may be able to recover attorney fees and punitive damages against the association. As we have written on many occasions, just because the board has the power to do something, does not necessarily mean that it would be right to do it.
That being said, regardless of the requisite amount of unit owners needed to amend the declaration, there should be a comprehensive overview of the proposal by the board before putting it to an association vote. Boards should exercise common sense in evaluating the situation because the decision will have a direct and substantial impact on the lower deck unit owner (Martini Lady) and ultimately on all unit owners, as it involves the use of an area owned by all unit owners.
Aside from relief pursuant to the Act, the board and the association may be exposed to liability by Martini Lady on equitable theories of relief. Construction of the deck can trigger a number of issues that would sustain a nuisance complaint. These include, but are not limited to, invasions of privacy, view and light obstructions, and a diminishment of a unit owner’s property value. It should also be noted that most condominium documents contain an anti-nuisance rule, which states that no unit owner may unreasonably interfere with the quiet enjoyment of the occupants of any other unit.
Also, why should all of the other unit owners, including Martini Lady, pay the additional cost of maintaining a new limited common element (Binocular Man’s deck), which is solely for Binocular Man’s use? To be sure, he did buy his unit without the deck and Martini Lady’s deck was always there.
All unit owners have an easement over the common areas. Construction into the common area by Binocular Man could be viewed as an encroachment or trespass into the common area. Trespass and encroachment are also viewed in and of themselves as actionable nuisances. Relief under these equitable theories is in the form of injunctive relief, which will allow the Martini Lady to prevent Binocular Man’s nuisance, trespass and/or encroachment.
As if the above arguments weren’t sufficient to carry the day, an additional argument could be made that that usurpation of a common element into a limited common element would constitute a change in the use of unit, and as a result, would require 100 percent unit owner approval.
This theory, although not heavily tested in the court as far as usurpation of the common elements is concerned, seems rational since all unit owners share in the common and limited common elements as part of their ownership interest in the community association.
In summary, it is imperative that boards be mindful of their fiduciary obligations under the Act in appropriately evaluating unit owner requests for modifications or expansions into the common elements that benefit only them to the detriment of another unit owner. That is why we recommend that any resolution or amendment changing the common elements to limited common elements at least have the assent of the adjoining unit owners. Costly litigation can be avoided if boards use common sense and fully evaluate the proposal and the interests of everyone affected by it, martini sippers and birdwatchers alike.
- For purposes of this article, common area and common element are used interchangeably.
- Sometimes mortgagee approval is also required per the Declaration.