“This is mine,” pretty much describes how owners view the limited common elements (LCEs) designated for their exclusive use. This is a standard arrangement through which parking spaces, decks, patios, boat slips and the like, are assigned, usually via easements, to individual units.

The most important issue for owners to understand is that these areas, while designated for their exclusive use, do not belong to them; they belong to the condominium association and are owned in common by all unit owners. This means owners may face significant limitations on how (or if) they can expand their LCEs and what they can install on them. A 2017 decision by a Massachusetts Appeals Court (Calvao v, Raspallo) provides a useful example and a caution to owners and boards.

Raspallo, who owned a unit in a two-unit condominium, had exclusive use of a deck, which she enclosed, effectively adding a room to her unit. The structure extended by about 111 sq. ft. into the limited common area between the two units. The neighbor, Calvao, sued, arguing that Raspallo could not convert limited common area she had the right to use into space she owned (a new room) without Calvao’s approval. The court agreed and ordered Raspallo to remove the structure.

Although the court acknowledged that Calvao had no right to use the limited common area, which had no value to her, Calvao still had an ownership interest in it, which, the court said, Raspallo could not appropriate. In the court’s view, Raspallo was using the LCE mechanism improperly to add space to her unit without paying for it, and without obtaining the required permission of other owners.

The Calvao situation is unusual, but it illustrates the problems that can arise when boards don’t properly grant LCEs and don’t effectively regulate their use. Developers often designate LCEs when they create a condominium, in which case the LCEs are identified in the governing documents. But owners sometimes seek to acquire LCEs after-the-fact, to add a deck or patio they don’t have, or to expand an existing space.

Pursuant to MGL c. 183A, Section 5(b)(2), Boards have the authority to approve LCEs, and the approvals are usually straightforward and uncontroversial. But boards should review LCE requests carefully, considering the potential impacts on other owners and on common areas. For example: Will the noise from the air conditioner condenser an owner wants to place in common area disturb his neighbors? Will the roof deck planned for an exclusive use area on the roof damage it?

While owners aren’t typically required to approve LCEs, there is some legal haze clouding this question. The condominium statute says owner approval is required from owners of units ‘immediately adjacent to” an LCE; but the courts haven’t provided much guidance on how ‘immediately adjacent” should be defined. My unit is the only one immediately adjacent to the deck I’m expanding. But what about the condenser planned for the common area between two units?

In a Massachusetts case raising that question, a Superior Court ruled that the board should have obtained the approval of a neighbor, because his unit was “immediately adjacent” to the common area in which the condenser was installed. Although a four-foot path separated the units, the court said, the neighbor’s unit was still “functionally adjacent” to the common area.

“Functionally adjacent?” We don’t know what this means either. And this wasn’t an Appellate Court decision, so it didn’t set a precedent. But because the legal issues are murky, and because noise complaints are so common, we typically advise boards to obtain the approval of neighboring owners for LCE requests involving HVAC equipment.

An owner’s s request for an LCE is just that – a request, which boards aren’t required to approve. But they should have good reasons for saying no. Boards that reject requests for decks from some owners that are identical to decks approved for others risk legal challenges accusing them of arbitrary enforcement and possibly discrimination.

To reduce litigation risks and avoid disputes between neighbors and between owners and the board, boards should establish procedures for managing LCE requests. We suggest the following:

Require owners to submit LCE requests in writing, with detailed plans for anything they plan to install in the area.
Require owners to obtain all necessary approvals and permits, use insured and licensed contractors, and comply with the association’s architectural guidelines.
Specify that recipients of an LCE will be required to maintain it.
Specify that if an LCE installation must be removed temporarily– for example, to repair pipes under a patio – the owner will be required to pay the costs.
Require owners to indemnify the board for any damages related to the repair or maintenance of their LCEs.
Assess the potential impact – on residents and property – of any planned LCE installation. For example, have an engineer verify that the roof can support the f deck or HVAC condenser an owner plans to place on it.
Specify that the LCE approved for a unit transfer with it and that the maintenance obligations are assigned to future owners.
Make sure the covenants indicate whether LCEs – parking spaces or boat docks, for example, can be sold or leased to other owners or to non-residents. If they don’t, the terms and conditions of the LCE approval should address these questions. At a minimum, board approval should be required for these transactions.
Require owners requesting an LCE to pay the cost of drafting the legal documents. This should not be a common area expense because only the recipient of an LCE benefits from it.
If the LCE adds value to the unit, as would be the case with a deck or a patio or a rooftop deck, we typically require the owner to pay something for the easement right. It is, after all, common area they are using to enhance their unit’s value.
Make sure LCE decisions are consistent, non-discriminatory, and documented.
Record LCEs in the Registry of Deeds. This tells current and future owners what benefits they are receiving, what obligations they are incurring with the LCE and what restrictions, if any, limit its use. This legal record also makes it impossible for future boards to decide they don’t like the decks approved by their predecessors and order their retroactive removal.

What happens if an owner installs something in a common area without getting the board’s approval for it? As with so many enforcement questions, that depends on the nature of the violation and its impact on the community. The storage shed an owner installs behind her unit probably should be removed, but the tiny garden? An after-the-fact approval of the LCE specifying the owner’s maintenance obligations would probably take care of it.

You don’t want to establish precedents that will encourage owners to take over common areas at will; but you also want to avoid litigation if you can – not only because it is expensive and creates bad feelings, but also because you don’t know how a court will rule.

Strict enforcement is always an option, but it isn’t always the best one. Avoiding litigation and maintaining harmony are often more desirable goals and usually produce better outcomes for the community.

Contact Matthew Gaines or Pamela Jonah for questions on limited common elements.

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