by Thomas V. Bennett
Conceptually, a condominium consists of three parts. One is the unit itself, which generally is defined as the finished facings of the walls, ceilings and floors of a condominium unit. In other words, what you see is what you own. Another aspect of a condominium is the so-called "common elements" which include the framing, supporting members of the building, the land, exterior stairs, roof, etc. The third aspect of a condominium is so-called "limited common areas" or "exclusive right" or "easement areas". They are, most commonly, parking spaces, exclusive roof decks, storage closets and the like.
After a condominium is developed and the building is lived in, sometimes it becomes apparent to the owners of the units that the initial provisions of the master deed and condominium trust dealing with limited common areas may have not been as fully thought out as possible. A particular unit owner may feel, for one reason or another, that a storage closet or a stairway area or an outside area which, as a practical matter, is only used by that particular unit owner should have been made a limited common area in the master deed for the benefit of that unit owner. What happens if a unit owner is in that situation? How do the condominium law or the condominium documents dictate how to make a change to the condominium documents so that the common area affected might become a limited common area exclusively for the benefit of one unit owner?
The Massachusetts Supreme Judicial Court, the State's highest court of appeal, answered that question in a case in which a unit owner in a 19-unit building used a walkway which provided access to that unit only and asked the condominium trustees and other unit owners to make that walkway exclusive to the use of that unit owner so that the unit owner could landscape the walkway. Unit owners representing 77.38% of the voting interest of the trust agreed to amend the Bylaws of the condominium trust to permit the unit owner to do so.
Another unit owner challenged the amendment claiming that the grant of an exclusive use to one unit owner was a diminution of his undivided percentage in the common areas. The question before the Court was whether or not the amendment, which gave the owner of one of the units an exclusive and unrestricted use of the walkway leading to that unit, constituted an alteration of the percentage interest of all of the owners or whether it is a permissible regulation for use of the common areas. The latter would require, under the terms of this particular condominium trust, a 75% vote which was obtained; the former would have required a 100% vote.
The Court decided that if the right were a property right, which it found it was, then the consent of all of the unit owners would be required. The Court found it significant that the common areas, which by its terms is for the benefit of all of the unit owners, is changed once it becomes the exclusive use of one unit owner and, therefore, would constitute a change to the undivided percentage interest of all of the owners.Clearly, based on that case, in order for a unit owner to obtain the exclusive right to use any of the common areas, all of the unit owners within the condominium have to agree to such a change. The condominium association, however, probably could license to a unit owner the use of a particular portion of the common areas. A license is revocable at anytime by the condominium association and, therefore, would probably not be considered by a Court to be the grant of a property interest which would result in a change to the unit owners' undivided percentage interest.