Published on: October 17, 2011

Occasionally, Unit Owners seek to perform modifications and renovations within their Units. Often times, this proceeds without incident. Sometimes, however, the modifications implicate or impact the Condominium’s common areas and facilities, and therefore in such instances, prior approval from the Condominium’s governing body is required in advance of undertaking such modifications or renovations. Unit Owners may be frustrated by this requirement, especially in cases where the impacted common areas and facilities may not be accessible or visible to other Unit Owners, but it is important to remember that all Unit Owners hold an undivided interest in the common areas and facilities and such common areas and facilities may not be modified at the sole behest of one Unit Owner absent prior approval.

In the case of Flynn v. Parker¸ 80 Mass. App. Ct. 283 (2011), Unit Owners sought to renovate the kitchen within their Unit, and in connection therewith, sought to completely remove one wall and partially remove another. Pursuant to their Condominium’s By-Laws, the Unit Owners sought approval for their proposed renovations from the Condominium’s Board of Managers. The Board of Managers indicated that it would grant approval for the proposed renovations, provided that the Unit Owners acknowledge that the Condominium association owned the two walls in question and agreed to the Board’s reservation of a right to have the Unit Owners reconstruct the walls at their expense for potential future common use, because they were designated as “common elements” on floor plans expressly incorporated into the Condominium’s Master Deed and the Unit Deed.  The Unit Owners objected to the condition and filed a fourteen count complaint against the Board of Managers based on various theories of liability, ranging from civil conspiracy to emotional distress. The Unit Owners argued that the two walls in question lie within their Unit, are not structural, and that the wall that they sought to remove completely does not currently contain any pipes, ducts, or other “central service equipment.”  In rejecting the Unit Owners’ arguments, the Court held that the floor plans incorporated into the Master Deed unambiguously identified the two walls at issue as common elements and the fact of whether the walls ultimately proved to be structural or not or whether the walls contained common utilities “would not affect the narrow question of ownership.”

Central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, “must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.” Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 182(Fla.Dist.Ct.App.1975).  See Franklin v. Spadafora, 388 Mass. 764, 769, 447 N.E.2d 1244 (1983). Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both “exclusive ownership and possession of his unit, G.L. c. 183A, § 4, and … an undivided interest [as tenant in common together with all the other unit owners] in the common areas ….” Kaplan v. Boudreaux, 410 Mass. 435, 438, 573 N.E.2d 495 (1991).  It affords an opportunity to combine the legal benefits of fee simple ownership with the economic advantages of joint acquisition and operation of various amenities including recreational facilities, contracted caretaking, and security safeguards. 

While it may be the case that a Unit Owner disagrees with the Board’s decision as it relates to a request to modify common area, the Unit Owner is still obligated to act in compliance therewith, as the Board is simply acting to preserve and maintain the Condominium’s common areas and facilities for the benefit of the entire association of Unit Owners, whom hold an undivided interest therein.

Click here for a copy of the Decision.