Generally, a condominium is restricted from selling any portion of the common elements to a unit owner without the consent of all unit owners. However, when is it permissible for a unit owner to have exclusive use of a portion of the common elements? When and how can a condominium board grant exclusive use of a common element to a unit owner? When can a unit owner alter common elements? This column provides insight and potential answers to these questions by examining the controlling sections of the Condominium Act and relevant case law. This column also updates our earlier one dealing with transfers of co-op common areas to shareholders. Unlike condominiums, co-ops may sell common area space to shareholders with only board approval.
Common Elements
The New York Condominium Act, RPL §339-i, defines common elements and establishes a statutory mechanism for calculating ownership interests in and protecting the permanent character and indivisibility of such spaces and their permitted use.1 Board actions that alter ownership interests in or physical characteristics of the common elements are likely to violate RPL §339-i. In Ronaldson v. Countryside Manor Condominium Board of Managers,2 the trial court granted plaintiff unit owners a permanent injunction preventing another unit owner from enclosing/fencing in space designated as a common element by the condominium’s declaration. The Appellate Division, Second Department, affirmed, holding that the fences would impermissibly divide the common elements and hinder or encroach upon the rights of other unit owners, in violation of RPL §339-i(3) and (4).
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