Rescinding A Condo Board Decision to Allow a Unit Owner Use of Common Area for a Patio

P.B. from outside of Connecticut writes:

Dear Mister Condo,

Many years ago, our condo broad approved one owner’s request to extend their patio into common property. Years later, several new owners disagree with the approval granted to this owner. The owner being referred to pays the least amount in monthly association fees due to the size of her unit (excludes use of extended patio into common space). Can an approval be reversed/space reclaimed as common or can monthly dues be reallocated so that this owner is paying for use of additional space?

Mister Condo replies:

P.B., like it or not, the approval of the previous Board is really all the unit owner needs to maintain their approved patio. If approval was given and is now going to be taken back, for whatever reason, you can expect a fight on your hands from the unit owner. If there is no written agreement that the unit owner can produce to verify the claim of Board approval for the patio installation, the current Board may be able to take back the common land by simply stating that proper approval was never obtained and that the unit owner is in violation of governing documents by having a patio on common grounds. This will get real ugly quickly as the unit owner who had some sort of approval will likely sue the association to maintain the previous approval. Reversing an approval may be possible depending on your by-laws and your state laws. For an opinion on that, you will need to speak to a locally qualified attorney.

Modifying your common fees is a whole other matter and not easily done. The common fees are generally determined by the percentage of unit ownership formula that are part and parcel of the association’s governance documents. Changes to these documents have their own set of rules and are not simply changed without a full vote of all unit owners and substantial rules on the supermajority or even complete agreement amongst all unit owners via vote. Again, this type of change is subject to not only your condo’s governance document but also state law. Do not attempt this without the advice of a community association attorney. Good luck.

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