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Limited Common Elements: When Your Patio Isn't Yours

Richard Siegler in Co-op/Condo Buyers

In Board of Managers of Holiday Villas Condominium I v. Bautista, defendant Ruel Bautista owned a premises at 8 Lynn Court on Staten Island. As the unit-owner, he physically acquired the patio in front of it — but not any title to it. Those areas remained with the condominium, as a common element.

The board alleged that Bautista installed a satellite dish on the patio without the consent of the condominium board. It was conceded that the patio area was part of the common elements, but was designated as a limited common element and assigned to the defendants under the covenants and restrictions filed when the condominium was formed.

The condominium's managing agent testified that in August 1999, the board established a house rule that permitted unit-owners to install exterior antennas and satellite dishes on the common elements. Before this, all such installations were prohibited. A unit-owner who wanted to install one had to sign an installation agreement that specified the satellite dish could not be larger than 18 inches diameter and must be installed on the roof of the building. The managing agent testified that in May 2001, while making an inspection of the property with members of the condominium board, he observed a satellite dish on the defendants' patio.

Bautista testified that he'd bought and installed the dish in 1997. It was roughly 33 inches diameter, nearly twice the size allowed, because a dish of that size was required in order to receive broadcasts from his native country, the Philippines. Bautista asserted that in 1997, he'd contacted the condominium board to request that the dish be placed on the roof, but that the board said no because it felt the dish was too big. Bautista did not have a copy of his written request, nor the board's response. The current managing agent, who was not the agent at the time, had no record of the correspondence.

Ditch the Dish

Starting June 2001, the board sent Bautista letters directing him to remove the dish from the patio, as it was in a common area and he hadn't board approval. Bautista ignored these requests, and in December 2003 the board began assessing a weekly penalty of $100, which had reached a total of $6,700 by March 31, 2005.

The court ruled that Bautista hadn't availed himself of remedies available under condominium bylaws — specifically, bringing the issue before the other unit-owners and trying to amend the bylaws to permit patio installation of satellite dishes and other telecommunication devices. The court held Bautista was premature in going to have the court system without having either exhausted those remedies or establishing that such a process would be futile.

Since federal statutes override local laws, how did the court find a way around the FCC's 1996 rule titled "Preemption of Restrictions on Placement of Direct Broadcast Satellite, Broadband Radio Service, and Television Broadcast Antennas," even though the only restrictions the FCC allowed were for safety and historic-district issues? The court said Bautista hadn't establish that he had "exclusive control" of the patio where the satellite dish was installed. As such, the court held that Bautista had the choice of (a) removing the dish or (b) installing one of smaller size in the location assigned by the board.

So even if you've bought a condo unit with a patio attached, even if you're the only one to use the patio, even if the rest of the condominium residents can't come by and set up picnics there, you don't have "exclusive control" if it's designated a "limited common element." When you're buying, make sure to check for that phrase.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.

Adapted from Habitat November 2005. For the complete article and more, join our Archive >>

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