MASSACHUSETTS APPEALS COURT REQUIRES 100% UNIT OWNER CONSENT FOR UNIT EXPANSION UPON LIMITED COMMON AREAS

Published on: November 16, 2017

On September 29, 2017, the Massachusetts Appeals Court issued a decision in the case Calvao v. Raspallo, 16-P-1143 (September 29, 2017) that involved a dispute between the unit owners of a two unit condominium over an addition onto one of the units.  One of the unit owners renovated her unit, and included an approximately 111 square foot addition or expansion.  The expansion was constructed upon limited common area designated for her exclusive use.  The other unit owner objected claiming that 100% unit owner consent was required for any unit owner expansion and filed suit seeking to remove the addition.  The expanding unit owner countered that because the expansion was constructed upon limited common area there was no intrusion or interference with the rights of the other unit owner and therefore the only consent necessary was that of the Condominium Trustee (who had been appointed by a Court Order because these two homeowners could not agree on who the Trustee should be).

The Trial Court held that the expansion of the unit upon limited common elements required 100% consent under G.L. c. 183A § 5 and ordered the expansion torn down and awarded attorney fees to the other unit owner.

The Appeals Court affirmed the Trial Court’s Decision concluding that “a unit owner may not annex exclusive use [limited] common area to her unit without the unanimous consent of the other unit owners holding a legal interest in that common area.” While the Appeals Court recognized that the land upon which the expansion was to be built was limited common area, meaning that only the expanding unit owner could use it (and that the complaining unit owner had no right to use it at all) the Court noted that the complaining unit owner still had an ownership interest in it because it was common area (even thought they could not use it.  The Appeals Court then said the construction of an expanded unit on the limited common area was tantamount to an exercise of fee simple ownership by the expanding unit owner.  The Appeals Court seemed troubled by the concept that one unit owner could use the limited common area designation as a means to expand their unit.

The Appeals Court might be right on that score. Ordinarily if a unit owner wants to expand their unit they would need 100% unit owner consent as it would affect percentage interests.  It appears that the Appeals Court will not allow unit owners or condominium boards to use “the limited common area grant”, which can be granted solely by a board as a means to avoid the 100% requirement for unit expansions.

The decision today begs the question of what exactly constitutes an “annexation” of common areas by a unit, versus a utilization of that unit’s exclusive use easement. Where is the line drawn between rights that can be granted in an easement over common areas, and an annexation of the common areas by the unit?  The Supreme Judicial Court in Strauss v. Oyster Rover Condominium Trust, 417 Mass. 422 took up the issue in 1994, and held that “a specific minor accessory use of the abutting common area is certainly different in degree from the unrestricted grant of a roving authority to permit unspecified expansion of units into the common areas.”

We think that Calvao stands for the proposition that a unit cannot be expanded by a limited common area grant absent 100% consent of the unit owners. Of course that begs the question as to what constitutes an expansion of the unit?  That likely does not encompass, decks, patios, sheds and outdoor showers.  Obviously the addition of a living or family room would be an expansion of a unit.  There might be some closer calls in terms of covered living areas, like a sun room or a three season room.  In cases where it is a close call, boards and unit owners will need to be very careful with respect to these requests and approval of the same and should consult counsel to protect them by including language in the limited common area grant that protects the board from future litigation like the kind that emanated in Calvao.

For a copy of the Calvao Decision [click here].

If you have a question about condominium expansion rights or limited common area grants please contact smarcus@meeb.com or eallcock@meeb.com