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Condominium Association and use of common areas

Submitted by ataraj on Tue, 05/08/2012 - 01:22

Can the board of directors of a small condominium association (21 unit owners) permit adjacent landowners to come across the common element property to access a public bike trail if one owner objects?

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Use of common areas

Submitted by The Editor on Tue, 05/08/2012 - 15:17.

See Massachusetts General Laws Chapter 183A, Section 5(b)(2)(i):
 
(2) The organization of unit owners, acting by and through its governing body, shall have the power and authority, as attorney in fact on behalf of all unit owners from time to time owning units in the condominium, except as provided in this subsection, to:
(i) Grant, modify and amend easements through, over and under the common areas and facilities, and to accept easements benefiting the condominium, and portions thereof, and its unit owners, including, without limitation, easements for public or private utility purposes, as the governing body of the organization shall deem appropriate; provided, however, that the consent of at least 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have requested to be notified thereof, as provided in subsection (5) of section 4 is first obtained; and provided, further, that at the time of creation of such easement and at the time of modification or amendment of any such easement, such easement and any such modification or amendment shall not be inconsistent with the peaceful and lawful use and enjoyment of the common condominium property by the owners thereof.

easement

Submitted by ataraj on Tue, 05/08/2012 - 18:45.

The law you provide does not answer my question...the board is not considering granting an easement. The neighbors (which happens to be a 77 unit condo complex so it's A LOT of people) come onto our property (right in front of my unit) to access the trail. My condo (these are single family buildings, imagine a resort with a bunch of cabins) faces the trail so all the traffic goes right in front of my condo. Nobody else at the condo complex cares because it doesn't affect them. Consequently, the board does nothing even though I have been trying to get them to address this for 2 years. I am worried if it goes on too much longer, the neighbors will be able to perfect an easement by prescription. I own an undivided interest in the common element property and as such, it makes sense to me that I can protect it from trespass, i.e. call the cops and have them stop the trespassing. The neighbors have never been given permission by our board to come onto the property. In fact, our board erected No Trespassing signs 2 years ago that are just ignored.

I am afraid if I do anything to stop the trespass, the board and membership will vote to allow them to come onto the property. My question is whether they can do that if an owner objects because it would be a use that doesn't benefit our owners at all. A very unique situation.

Prescriptive easement

Submitted by admin on Wed, 05/09/2012 - 09:30.

You are welcome for the free information.  It's always nice when someone appreciates our efforts.  My answer does, in fact, answer your question.  If it chooses to do so, your association can grant permission to the public to cross common areas.  You would be obligated to object to the grant of easement by arguing, through your attorney preferably, that the easement would negatively impact your use and enjoyment of your unit.  You can read this post for information about prescriptive easements in MA.  Talk to your association about helping you to protect your property rights.  If it does not cooperate with you, talk to an attorney who deals with condominium and land use law in MA.

easement

Submitted by ataraj on Thu, 05/10/2012 - 11:28.

I apologize if I sounded unappreciative in my response...that's not the case. I do appreciate your input. I guess I wasn't very clear in the way I worded my question. The declaration allows the board to grant easements but my assumption is that power relates to easements that in some way benefit the owners, i.e. utility easements. There would be no benefit to the owners by granting this type of easement. If the association were compensated for the easement, that might make sense but I don't think that will happen. The neighbors have already threatened they have a prescriptive easement but I have a letter from a previous owner that states the neighbors were given permission to cross the property in the early 2000's. They have not filed suit to perfect the easement.

In this case, the board is not discussing the granting of an easement but merely just sending a letter to the neighbors saying it's OK for them to cross the property. They would do this because of the threat made by the neighbors, to appease them.

It seems to me that there are 21 owners, each owning a 1/21st interest in the common property and I don't understand how those 5 owners can give permission when they aren't the only ones affected by such intrusion. I don't even understand how a majority of owners could give permission. It seems to me they would need unanimous consent.

This is such an odd case because *most* landowners seek to keep people off their property. So I really think it's an issue of first impression.

Preventing prescriptive easement

Submitted by The Editor on Thu, 05/10/2012 - 13:20.

So, assuming the association has no intent to grant an easement, sending a letter of permission makes perfect sense to defeat a claim of prescriptive easement by the neighbors.  Except it makes no sense for you and any other similarly situated owners who do no want the neighbors wandering outside their windows. 
 
What your association should do is document the prior permission that you speak of (to shore up the defense against any attempt by the neighbors to perfect an easement by prescription), then withdraw that permission and enforce a no trespassing policy, with some combination of letters, physical barriers, and police involvement.   That would create a new 20 year requirement AND protect your rights.  If the association is not willing to take that approach, or some similar approach that protects your rights, you will have to hire an attorney to advocate on your behalf.  Good luck.

easement

Submitted by ataraj on Thu, 05/10/2012 - 23:11.

That makes sense, and that's what I have been advocating. I asked our board to just send a letter giving them permission for a year and go from there. I can take another year of the trespassing just to ensure they can't legally make the claim. But the board doesn't seem to share my view as to importance of this action. Very frustrating but I do think I have a valid claim for breach of fiduciary duty if the neighbors do file a lawsuit to attempt to perfect the easement. An easement will certainly adversely affect the value of my unit. I do have a letter from the neighbors stating this, "...it would have been possible to perfect this easement to access the property but all the previous owners have honored without it." To me, that means the previous owners gave them permission to come onto the property (prior to 2002 when the condo association was formed.) Thank you for your advice.

Condo easement by prescription

Submitted by hunted on Wed, 08/29/2012 - 21:03.

I am a condo owner and everyone in the building has used a closet as part of the shared common area for over 20 years. a new board wants to stop this. Can we apply easement by prescription?

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