We think this is incredibly unfair. We live in one of the buildings that does not allow the enlargement of our patios. What can we do? We want to enlarge our patio. Can we force our association to allow us to enlarge our patio? If we can’t, can we force those owners encroaching into the common areas to tear up their oversized patios?
A: You are in an interesting position, but it’s not unique. It’s interesting because you have six buildings that are identical, but each of these buildings appears to be totally independent in terms of rules.
Sam has worked with clients in the past whose circumstances are similar to yours. In some cases, certain buildings have better management than others, which translates into higher unit values and association reserves, different repairs and upgrades, and even different levels of decor in the lobbies and hallways.
It all comes down to each buildings’ owners, who then direct how these buildings are run and managed. Once each year, the owners of each building elect a group of people to run their board of directors. These elected officials decide how to spend money and make decisions about their building. Given these differences, you can assume that there will be differences between the buildings even if they all look the same from the outside.
One building’s board might decide to allow dogs while the others may elect to be pet free. Another may decide to allow smoking. One building may have higher association assessments, and, hence, better decorating, updating and maintenance schedules. In the end, just because the buildings are identical does not mean that the buildings’ owners make the same decisions, have the same rules, or run the buildings in the same manner.
On your particular issue, we assume that four of the buildings allow the first-floor unit owners to expand their patios into the common area owned by that particular building. The board of four of the buildings must have decided it was acceptable to let those first-floor owners do this but two of the buildings did not.
You can talk to an attorney that handles condominium associations and discuss your particular issue with them, but we think it’s unlikely that you’ll get what you want. Instead, we suggest that you work with your building’s current board to see if you can persuade them to allow the change. If they won’t agree, your other option is to work with other unit owners to vote in different people to run the affairs of your particular building. Consider running yourself, along with other first-floor owners.
You need to remember that your building’s developer created a framework that allows all of the unit owners in your building to work together. The developer created the governing documents that set the boundaries for each condominium unit. In your case, the boundaries of your unit are inside the four walls of your unit plus an adjoining area for your patio. This patio may be a part of your unit or you may have exclusive use of the patio by virtue of these governing documents. You’ll need to check that out first.
You now want something more that wasn’t given to your unit originally. For you to expand the rights you own — the right to an expanded patio over land that you do not own — requires your condominium association’s grant of that right to you. And for this, the board has discretion and is probably not bound by anything the other four buildings have done. Be aware that there may be other, unintended consequences of this action, including an increase in the amount you pay monthly for your unit.
We’d suggest you try to work with these board members to convince them that they have nothing to lose by giving you this right. But be kind while doing it, as you are trying to convince them to give you something that you likely are not entitled to.
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask" (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact them through her website, bestmoneymoves.com.
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