Patio expansion debacle

Started by SarahL1 • 3 replies • 381 views

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SarahL1 (Rhode Island)
Posts: 1

Posted:

Our condo board approved the plans for our patio expansion, but after the construction began they changed their mind and told us to stop the project. The board is claiming that we can’t use some of the land that they approved for the expansion bc it is common area. However, there have been at least 6 other patios that were expanded in the past few years, and all of them used common area since our bi-laws include all the property outside of the units as common area. My husband and I have thousands of dollars into this project, and they condo board’s attempt to stop our patio expansion is costing us a significant amount of money. Does the fact that other units built on common area set a precedent that should allow us to go ahead of our plans? Does the condo board have the right to change their mind halfway through the construction?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By SarahL1 on 07/11/2021 7:20 AM
Does the fact that other units built on common area set a precedent that should allow us to go ahead of our plans?

Encroaching on common area is a big deal, for liability reasons. Competent HOA/COA attorneys go nuts when they hear a Board/ACC "approved" the taking of common area by a unit owner.

Also the plats on file with the county likely have to be amended when common area is "converted" to either "limited common element" or "given" outright to an owner.

Amendment of the plats (and so covenants) requires a vote of the membership.

Quote:

Does the condo board have the right to change their mind halfway through the construction?

It's entirely possible the board realized it made a mistake, and the COA's attorney said to withdraw the approval.

Your options are to lawyer up and see where this goes. Or not lawyer up and see what the COA does. Remember, the COA likely has more resources than you to pay the COA attorney to fight you.

If you proceed, you may end up having far more expenses and inconvenience than planned, including having to tear out what you put in.

If I were on this board, I would be annoyed with past boards. But I also would ask the board to see what the COA attorney says.

I personally have zero patience with owners wanting to take any common area. None. Doing so is a big deal legally. Many owners do not realize this. My post is meant to be an introduction to legal realities here.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

I think AugustinD gave a great answer and this is in fact what our lawyer told us. However, since the Board approved it I would be fighting to get reimbursed for any costs associated with getting back in compliance.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I agree with the previous answers.

In addition to liability issues, another reason that encroaching onto common areas in condo associations is a Big Problem is that assessments are typically based on percentage of ownership. This encroachment can change the percentages and boils down to an illegal re-writing of the covenants, conditions and restrictions (CC&Rs) that are attached to the deed to your home. CC&Rs can only be amended by approval of a majority of homeowners, and usually a super-majority of 67% or 75%. Legally that's a big, hairy deal even though an enlarged patio seems to be such a minor issue.

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