Condo Media - November 2011 - 19

RHODE ISLAND

by Mary Joy Howes, Esq.

Owners Who Don’t Ask Before May Have to Pay After

Condominium Act Provides Guidance
The Rhode Island Condominium Act, §34-36.1-2.11, which deals with alteration of units, provides that a unit owner, “may not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without permission of the association.” This is subject to the provisions of the declaration and other provisions of law. In general, the powers of the unit owners’ association are enumerated in §3436.1-3.02 of the act, which states, inter alia, the association may “regulate the use, maintenance, repair, replacement and modification of common elements.” Pursuant to the act, and unless stated otherwise in the declaration and bylaws, the executive board may act in all instances on behalf of the association; i.e, the executive board has discretion with respect to granting permission to alter one’s unit. Although association declarations, bylaws and rules differ, almost all have a provision that prohibits unauthorized improvements to the building’s exterior. At the very least, the declaration will incorporate the act in a catch-all provision. Pursuant to § 34-36.1-3.20 of the act, an executive board may impose

The Nonconforming Window Resolution
Based on the foregoing, the executive board must send deFrent a demand notice to remove her nonconforming window. If she does not comply, a hearing must be set in accordance with the act. Finding her in violation of the applicable condominium declaration, bylaws and rules and regulations, the executive board must then set a date for removal of the window and decide what fines to impose for future noncompliance. If an attorney of the Rhode Island bar represented the association, she can be made to pay the association’s legal fees. All of these assessments are a lien on her unit. And, deFrent will bear all costs in removing and replacing the window (on top of what was spent in the original, unauthorized installation). If she fails to remove the window, the association may do so and charge the costs back to the unit.

Improvement and Alteration Considerations
The association’s documents should be

Mary Joy Howes, Esq., is an associate with the law firm Goodman, Shapiro and Lombardi LLC.

CONDO MEDIA • NOVEMBER 2011

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vanna B. deFrent, replaced her standard bay window with a custom-made one that has colorful stained glass panels. Ms. deFrent did not tell the executive board or the association manager that she planned to have this work done. There are 24 other units in the complex; all have the same standard bay window. Can the executive board make Ms. deFrent remove the window?

and assess fines against a unit owner as a method of enforcing the association’s declaration, bylaws and rules and regulations. Such fines may include, but are not limited to, daily fines (up to $100 per day for residential condominiums and up to $500 per day for commercial condominiums) for continued violative conduct. It is important to remember that notice and the opportunity for a hearing must be provided to an alleged violator before a fine is imposed and assessed. The prevailing party at hearing also must be awarded costs and reasonable attorney's fees.

very specific with respect to what improvements and alterations may be made without executive board approval. These specifications should consider both the structural and aesthetic integrity of the complex as a whole. When a unit owner presents a request to the executive board to alter their unit’s exterior and does so through the proper channels, forum and timeframe, a number of considerations should come into play. Is this an improvement that should be considered to the complex as a whole (e.g., new windows, doors or siding)? Would allowing this particular alteration compromise the overall aesthetic of the complex (e.g., adding a canopy to the existing deck or installing a stained glass window)? Does the complex have other non-conforming elements? Associations should mandate that, before any work is done, the executive board must be presented with: the detailed specifications, a copy of the contractor’s insurance listing the association as an additional insured and copies of all applicable permits. If the executive board in this instance were to ignore deFrent’s installation of a stained glass window, or, if upon request, permitted her to install it, a host of problems would emerge. Authorization given to a unit owner to make a non-conforming improvement is a slippery slope for an association, setting the stage for additional and more drastic alterations from the same or other unit owners that may compromise the architectural integrity of the entire complex. CM

R e g i o n a l

Preserving Architectural Integrity

N e w s

Condo Media - November 2011

Table of Contents for the Digital Edition of Condo Media - November 2011