Condo Media - January 2013 - 23

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into the common area by Binocular Man could be viewed as an encroachment or trespass into the common area. Trespass and encroachment are also viewed in and of themselves as actionable nuisances. Relief under these equitable theories is in the form of injunctive relief, which will allow the Martini Lady to prevent Binocular Man’s nuisance, trespass and/or encroachment. As if the above arguments weren’t sufficient to carry the day, an additional argument could be made that that usurpation of a common element into a limited common element would constitute a change in the use of unit, and as a result, would require 100 percent unit owner approval. This theory, although not heavily tested in the court as far as usurpation of the common elements is concerned, seems rational since all unit owners share in the common and limited common elements as part of their ownership interest in the community association. In summary, it is imperative that boards be mindful of their fiduciary obligations under the Act in appropriately evaluating unit owner requests for modifications or expansions into the common elements that benefit only them to the detriment of another unit owner. That is why we recommend that any resolution or amendment changing the common elements to limited common elements at least have the assent of the adjoining unit owners. Costly litigation can be avoided if boards use common sense and fully evaluate the proposal and the interests of everyone affected by it, martini sippers and birdwatchers alike. CM 1 For purposes of this article, common area and common element are used interchangeably. 2 Sometimes mortgagee approval is also required per the Declaration. Mary Joy Howes, Esq. is an associate with the law firm of Goodman, Shapiro and Lombardi, LLC.

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Condo Media - January 2013

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