Here's the facts: condo building consisting of 3 units converted in 2002. A year or so goes by and one of the unit owners builds a patio deck on top of a flat roof. The owner is pretty sneaky and completes the construction swiftly in a couple days without permission from the association and without a building permit. None of the other unit owners object to the construction of the illegal roof deck. It did take a while to notice it because of the sly construction of it.
Later the unit with the illegal roof deck is sold to a new unit owner. Evidently the status of the illegal roof deck did not come up in escrow or if it did was acceptable to the new unit owner.
More years go by and there's no issues until the flat roof begins to leak. During discussions of how to pay for the repair or possible replacement of the roof, a dispute arises.
One unit owner feels the unit owner of the illegal roof deck should absorb the cost of removing and replacing the deck so that the association can have access to the roof and the cost of the roof repair and replacement itself is the responsibility of the association.
However the owner of unit with illegal roof deck claims that the cost of removing the deck and replacing it is a cost of the association.
There is a meeting of the minds when it comes to maintenance of the roof deck. All unit owners agree that maintenance of the roof deck is the cost of the unit owner that owns the roof deck and has exclusive use rights to that space.
So does the unit owner of the roof deck have a financial responsibility to get the roof deck out of the way so the association can replace the roof?
Or does the association have the financial responsibility to move the illegal roof deck out of the way so that the roof can be repaired or replaced.
Arbitration for small condominium associations
This sounds messy. First, it is my understanding (note, this it not my area of expertise) that federal home mortgage regulations actually require an arbitration clause in the condominium documents of condos with fewer than five units. See if you have such a clause in your documents. If you and the other owners cannot resolve this matter on your own, arbitration is much cheaper and easier than litigation. If I understand the question correctly, it sounds like the deck is sitting on top of a common area (the roof). If that is the case, it belongs to the association, not to the top floor unit owner.