Q&A: Using the Common Hallway and Maintenance Increase

Q My condo board has given notice to a maintenance increase for this year after a  five-year assessment, which is to expire next year. If an owner has several  combined units and has incorporated the common hallway usage for their personal  use, is this space also subject to the maintenance increase?  

 —Concerned Condo Owner  

A “The issue you raise is whether this common hallway space—now apparently being used exclusively by one unit owner—is also subject to the maintenance increase,” says attorney Edward K. Shanley of the law firm of Coogan, Smith, McGahan,  Lorincz, Jacobi & Shanley, LLP, based in Attleboro, Massachusetts.  

 “Preliminary questions I have are whether the unit owner ever received permission  from the condominium board to exclusively use the hallway space and whether the  special assessment and maintenance fee increase are presently correctly  assessed to all unit owners. To the extent that the special assessment and  maintenance fee increases are correctly assessed to all unit owners, including  the unit owner with the combined units, assignment of a greater portion of  common area charges would not be lawful. On the other hand, if it has not been  correctly assessed, there are legal mechanisms to address the situation.  

 “Generally speaking, a unit owner has no right to exclusively occupy common area.  Condominium boards can seek injunctive relief from a court to order the  termination of an intrusion by a unit owner into common area if necessary. A  court could also require that the beneficial interest of each unit owner in the  common area be recalculated to reflect any proportionate change in the value of  units due to the unit expansion. This recalculation would change the amount of  a unit owner's common expense charges.  

 “There are other ways to resolve the issue without the need and cost of  litigation. In Massachusetts, where I practice, legislation has been enacted  which provides for the creation and designation of so-called “limited common areas” and also the granting and accepting of easements by condominium boards and unit  owners. Limited common areas can be either set forth in a master deed (likely  not your scenario) or granted by a board. In order for a board to lawfully  create limited common areas or grant easements for use of common area to a  particular unit owner, the approval of certain affected unit owners and, in  some cases, mortgagees, must be obtained in advance. Massachusetts law also  provides that the granting of such rights to use common areas may not be made  upon terms deemed appropriate by the board. This means that, at least under  Massachusetts law, and assuming the lawful creation of a limited common area or  granting of an easement, the board could charge this particular unit owner a  reasonable fee for the use of the hallway. This fee would be distinct from an  assessment, which is typically based on a percentage of the entire budget.  

 “In short, the space incorporated by the unit owner should either be made subject  to the maintenance increase or a separate reasonable charge by the board as a  condition of allowing the unit owner use of the space.”  

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