Published on: November 28, 2016

In a divided opinion in the case of America v. Mardo, 140 A.3d 106 (RI 2016), the Rhode Island Supreme Court allowed a unit owner, who constructed an expansion to his unit without 100% unit owner consent required under the Rhode Island Condominium Act, §2.17(d), to retain the expansion.  In so deciding, the Rhode Island Supreme Court affirmed the decision of the Trial Court that the unit owner proceeded with the good faith belief that the expansion was permissible as (1) the Condominium Declaration expressly permitted expansions, and (2) the parties had not yet received the Supreme Court’s decision declaring that provision of the Condominium Declaration violation of the Act.

The case was extremely contentious, with the court noting in its decision that this was the “fifth time they had been called upon to quell seemingly unending disagreements” at this particular condominium complex located at Goat Island, Newport, Rhode Island.

The bottom line in this case was the court would not punish a unit owner for expanding his unit, until after the court had declared the practice illegal.  Likely at issue was the fact that ten of the other nineteen unit owners in this sub-condominium complex had also expanded.  Had the court decided to tear down one unit, the other ten units could have been jeopardized.

While the court decided not to tear down the expanded unit, the case was remanded back to the trial court for an award of attorney fees because the court held that a violation of the statute required the award.

This case and the four Rhode Island Supreme Court decisions that preceded it at Goat Island (there has also a subsequent decision) illustrates how difficult it can be to predict how a court will interpret the Condominium Declaration and the Act and how much risk can be involved in proceeding absent a final court decision (i.e., the possible demolition of a unit and thousands of dollars in attorney fees).

Ed Allcock represented the Harbor Houses Condominium Association (in which the expanded unit was allowed to remain) in this and two other cases before the Rhode Island Supreme Court.

To obtain a copy of the America v. Mardo Decision [click here].

For any questions regarding this article, contact Ed Allcock at eallcock@meeb.com.