Ever since Amy Simek invested in two duplexes in a small East Harlem condominium, she’s been inducted into a little-discussed but often prevalent problem of living in a condominium – how to deal with a homeowner who sees the whole building as, well, her home?
For Simek, who moved into the building two years ago, the first inkling that the board which she heads wasn’t in control was when two wicker baskets for recycling and a bulletin board for public notices appeared on the condo’s first floor, courtesy of a first-floor unit-owner. It was a nice touch, but was anyone consulted? Then a cement mixer showed up one day, and a basement storage room was born. Again, the board hadn’t been consulted, and now the storage room, which was kept locked by the same first-floor unit-owner, was blocking the only exit to the building’s backyard. Over the summer, when news came of the change in trash and recycling pickups, a new steel bin appeared outside the building’s front door – again, purchased by the same unit-owner – without consultation with the board.
Good, bad, or indifferent, these installations were getting out of hand, decided Simek. Enough was enough. It was time to take back control. “She wasn’t discussing these changes with anyone,” says Simek, who recalls that she convened a meeting of the unit-owners to discuss electing new members to the board, and drawing a line in the sand with the errant owner. “I’m not sure what we were going to do after that,” admits Simek, because the building doesn’t have the money to hire a lawyer.
While co-op boards often despair of finding shareholders to volunteer their services in a building, in a condominium, the situation is often reversed, say real estate attorneys. Oftentimes, board members are frustrated by too much help, in the way of unit-owners taking it upon themselves to “help out” in the building, often without requesting permission from the condo board, nor seeking any input as to whether what they are doing is appropriate or even justified. Reeling in an errant condo owner takes time, patience, and knowing the laws that govern the building.
Stanley Dreyer, a partner in the law firm Gallet, Dreyer & Berkey, says that he has represented condos where unit-owners have run the gamut. In one condo, a unit-owner built a pool in the backyard for his child, without requesting permission from anyone, let alone the board. “That was fine for his child, but what about the other children in the building?” says Dreyer. “What about their safety?” In another condo, a unit-owner put up a jungle gym in the backyard without permission. Part of the problem, Dreyer explains, is the perception of condo owners that, because they own their units outright, they own all the available common space in the building, too. In a co-op, they would be shareholders in a corporation that owns the property. In a condo, “it’s ownership by title. A completely different perspective,” maintains Dreyer.
Steve Wagner, a partner with Wagner, Davis & Gold, says condo boards that are frustrated with unit-owners who are commandeering common spaces should look at New York State Real Property law, which governs the use of common space in condos.
Under the law, “each unit-owner shall comply strictly with the bylaws, rules, and decisions adopted pursuant” to the condo’s creation. Any failure to comply can lead to “damages and injunctionable relief.” Which means you can be sued.
“I represented a condominium on the Upper West Side where there was an individual at the condominium who had just decided that they were going to take it upon themselves to trim trees in the courtyard and paint,” Wagner recalls. “We sent this person several notices after several unit-owners had become upset with the changes this person was making unilaterally to the courtyard.”
When the resident persisted, the condo took him to court, and won. The court issued an injunction declaring that he had to stop and enjoining him permanently from making alterations in common areas without board consent. If unit-owners try to take over a condominium’s common areas they had better have permission, observes Wagner, otherwise, “they are violating the declaration of the condominium, and the covenants that run with the deed and the proprietary lease.”
One property manager points out that the East Harlem condominium has other alternatives than court. First, talk with the unit-owner. “Sit down and talk with her straight out and [point out that] common areas cannot be usurped by any individual.” If the owner won’t listen to reason, suggests the property manager, warn her that the board is prepared to write to the bank that holds her mortgage, and tell it that she is “usurping property that by law doesn’t belong to her,” and that the board is ready to file papers to take over her mortgage. If that fails, then file the papers and start the process to get her out of the building, “which you can do with good cause.”
“You are happy that someone takes initiative, but how much is too much?” asks Maura Mandrano, a condo board member who lives at the 34-unit Sailmaker on City Island. For years, she says, her board struggled to rein in an enthusiastic unit-owner who slowly took over all the aesthetics of the condo.
“He was an artist and a designer, and he had wonderful aesthetic taste and so, little by little, we left a lot of the decorating up to him.” But in the end, most of the residents felt that the owner went too far. First, he was just decorating the hallways at the holidays. Then, the decorating extended to landscaping, then to leaving long notes on other unit-owners’ doors, remonstrating with them that their window treatments weren’t in keeping with the overall décor for the building.
The final straw came when the unit-owner purchased a fountain, and installed it in the condo’s pool without telling anyone. The next thing the board members knew, the condo had been fined $300 by the Board of Health, because the fountain had aerated all the chlorine out of the water. Enough was enough, the board members decided, the unit-owner had to be told to stop. The fountain was removed, and not long after, the unit-owner also moved out.
“We learned that you have to be very strict,” says Mandrano regretfully. It’s been hard to find volunteers since, she points out, but nonetheless, the board was breathing easier these days. Dealing with this particular owner “put the board in a very difficult position. This was a classic case of good intentions gone awry.”