Eleven condominium associations belong to a master association. In the Declaration of Condominium for one of the associations, a condominium restriction states: “all units above ground floor must remain fully carpeted at all times except in the bathrooms and kitchen.” One day the owners of a second floor unit asked the property manager for permission to lay ceramic tiles throughout their unit. The manager wrote it’s “O.K.” if the master association approves, and she referred the owners to the master association. The master association president gave written approval if the work met certain soundproofing requirements, but the requirements were sent by fax on a separate page. The owners then laid tile throughout their unit. They used ¼ inch soundproofing cork that they bought with their tile. No one ever asked the owners downstairs if any of this was objectionable to them. The thickness of the cork required by the President on the “separate page” was very unclear, but the master President stated that he conditioned use of the tiles with the requirement that ½ inch cork is used. Of course, Murphy’s law reared its disruptive self and the owners below heard every footstep, even the drop of a pen. They complained to the property manager and owners upstairs. The owners refused to remove their beautiful, expensive tile since they obtained written permission from the master association.
The ground floor owners, represented by Michael E. Rehr, sued their upstairs neighbors for an injunction to enforce the restriction. The second floor owners in turn sued the master association, the property manager, their own condominium association and the company that sold the cork soundproofing. After 1 1/2 years of litigation, the judge granted a summary judgment in favor of the ground floor owners.
Restrictive covenants are clothed with a strong presumption of validity and are to be strictly enforced. The master association, according to their own master Declaration, had authority over the common areas in the community, such as the parks, lakes, playgrounds, streets, barbecue areas, street lighting, etc. It was also expressly provided in the master association’s declaration had it no authority over the interior of the units, which were governed by the declaration of each condominium. Thus, the master association had no authority to give permission to tile the second floor unit. The second floor owners had no right to rely on the unauthorized permission from the master association president. The judge ordered the second floor owners to lay padding and carpet over the tiles in their entire unit, except for the bathrooms and kitchen. He also entered a permanent injunction that prohibits anyone from removing the carpet to expose the tile again. He also ruled that the ground floor owners were entitled to be awarded their costs and attorney fees. Not long thereafter, a settlement was reached in which the Plaintiffs were paid all of their court costs and attorney fees, plus an additional sum as damages for their annoyance.
Board members must know the limits of their authority and always review the governing documents before allowing a substantial modification to a unit. Better yet, board members should consult with their association’s attorney before any such action.
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