Case Notes in

Common Element

First published: Dec 2022
A Big To-Do Over Small Dollars

So far this is a typical skirmish over discovery. But once again we see a board that has entangled itself in costly and distracting litigation, this time seizing a potential legal loophole in a quest for a little additional income. The motion practice threatens to overwhelm the fundamental issues. The typical strategy of the parties at this stage also does not help to solve the problem. The board may be trying to bleed the Gobins so as to compel a settlement, and the Gobins may be maintaining their discrimination claims to raise the risk to the condo of their being awarded legal fees. And every dollar spent raises the stakes in a potential settlement.

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First published: Mar 2015
Green v. Board of Directors of 880 Fifth Avenue Corporation and Francis L. Mitterhoff

This is a situation that managers and practitioners see every day. A “transfer” or some formal or informal agreement was reached years earlier and the paperwork, if it ever existed, is nowhere to be found. What can a board (and an affected shareholder) do? The defendants here were able to show historic use and prior agreements through the testimony of Schneider and his daughter. The information they were able to provide was important in this instance because Mitterhoff needed to be able to demonstrate that the Schneiders used the area for a period of years – at the very least for more than a decade. Presumably, they asked the board to review its records and confirm, in a resolution, that Schneider had the right to use the rooms. Although Green tried to use the resolution as a “starting point” for the statute of limitations, the court was able to rely on the language of the resolution, which stated that the board “confirmed” Schneider’s rights. If a shareholder has the right to use space that is not within the four walls of that shareholder’s apartment, the shareholder may want to confirm with the managing agent what paperwork is on file with the building. Better yet, the shareholder may want to give to the managing agent a copy of any documentation regarding the space so that it can be retained in two places.

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First published: Mar 2009
Kaung v. Board of Managers of Biltmore Towers Condominium Association.

We are once again faced with a situation where the courts look to the precise language of a condominium’s bylaws to establish the rights and responsibilities of the condominium and its unit-owners. Here, the bylaws did not permit the board to enter into a cell tower lease because the court found that the tower was not “incidental” to the residential use and occupancy of the building, as required by the bylaws. However, the court also held that – notwithstanding the board members’ incorrect interpretation of the by-laws – the board members’ decision to enter into the lease that allowed the cell tower to be installed was not actionable. The board members entered into the lease in accordance with their business judgment and their failure to properly interpret the document did not form the basis for a cause of action against them.

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First published: Jan 2009
Baker vs. 16 Sutton Place Apartment Corporation

This case reminds us that when a person buys a co-op or a condo apartment, he or she gives up certain rights, including the right to determine the way in which common areas of the building can be used. This is true even if use of those areas may negatively affect a specific shareholder. Levandusky and Pullman are the seminal cases in this area. Levandusky taught us, and Pullman reaffirmed, that “the very concept of cooperative living entails a voluntary, shared control over rules, maintenance and the composition of the community.” A shareholder “voluntarily agrees to submit to the authority of a cooperative board, and consequently the board may significantly restrict the bundle of rights a property owner normally enjoys.” Although the Pullman court cautioned that courts must exercise “heightened vigilance” in examining board’s actions, there can be no question that when one purchases a cooperative apartment, one agrees to submit to the decision making authority of the board and to cede certain of the privileges of single ownership to a governing body. In this case, the plaintiffs purchased at a time when the roof garden was not in place. However, the board had the right to create a garden even though plaintiffs might lose certain privacy rights. We note that had plaintiffs and the co-op entered into a contract prohibiting the board from installing a roof garden above plaintiffs’ apartment, the business judgment rule would likely not have been applicable and the parties would have been required to abide by the terms of the contract. It is apparent from the decision that no such contract existed here.

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First published: Dec 2005
Duran v. Essex House Condominium

The issue here concerned who was in control of the space in a condominium building between the ceiling and floor of two units. Either it was part of the lower unit or it was within the common elements. The facts were in dispute. It is usually difficult to obtain a preliminary injunction because of the requisite burden of proof. In this case, the relief sought was denied leaving the plaintiff to establish at a trial on the merits his entitlement to such relief, requiring a more expensive effort.

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First published: Nov 2005
Board of Managers of Holiday Villas Condominium I v. Bautista

While the federal government may be seeking to facilitate the transmission of TV signals, the legislation to achieve this result limits the right of a subscriber to install a satellite dish to areas under the exclusive control of the subscriber. The law seeks to balance the right of the subscriber to receive the signal with the right of the condominium to control the use of common areas for the benefit of all unit-owners.

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First published: Dec 2003
2682 Kingsbridge Associates, LLC v. Martinez

While this case involved a rental building, the result is equally applicable to a co-op, where general principles of landlord/tenant law are applicable. The issue is one of exclusive control by the tenant. Without that, the tenant’s rights to a satellite TV dish are restricted. The same principle should apply in the condominium building if the satellite dish is placed on a common element, other than a limited common element such as a terrace or balcony, where the unit-owner has the right of exclusive use.

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First published: Dec 2002
Teitelbaum v. Woodbury Village Condo-minium II

The result in this case is somewhat surprising. The "irrevocably restricted" common element is normally called a "limited" common element meaning that its use is restricted to a single unit, although traditionally the cost of maintenance of the space is a common expense. Here, the cost of maintenance was held to be the responsibility of the unit owner. The result suggests the importance of reading the condominium documents carefully and realizing that specific provisions govern which may produce a result at odds with expectations.

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