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CCOC Decision Summary

#250-O, Schott v. Sumner Village Condominium Two, Inc. (January 13, 1995) (Panel: Bromberg, Blumberg, Glancy)

The condominium owner (CO) complained that the condominium association (CA), in the course of repairing the concrete pad under his breezeway, demolished the enclosure he had installed on it and failed to replace it, nor would the CA allow him to replace it.  The CA's response is that the rules prohibited the improvements.

The evidence at the hearing showed that part of the breezeway next to the CO's unit is a limited common element belonging to the CO, and that in 1975 the CO applied for, and received, permission to install certain improvements to it, including an enclosure.  In 1984, the CA changed its rules, and prohibited the types of improvements that the CO had made, but the new rule allowed the unit owner to retain an existing enclosure around the breezeway so long as it was kept in good condition, and the rule also provided that the owner could temporarily remove the enclosure in order to maintain or repair a limited common element.  The CO's enclosure was still in good condition in 1991, when the CA determined to remove and replace all the concrete pads in the breezeways; this job required the removal of the existing enclosures.  After the new breezeway was completed next to the CO's unit, the CA refused to pay for a new enclosure and refused to allow the CO to replace his enclosure.

The hearing panel held that under the 1984 rule, which allowed for the temporary removal of an enclosure for the purpose of making repairs, any enclosure removed for the breezeway pad repairs could be replaced either with the existing enclosure or with a new one if the original materials had been destroyed.  The panel further held that the CO had an unlimited right to rebuild his enclosure so long as it was similar to the original one, which he had been granted permission to install in 1975.

The panel ordered that the CO had the right to rebuild the enclosure at his own expense.

The panel denied the CA's motion for attorney's fees on the grounds that the CA had not prevailed in the dispute and because the CA had not acted in a reasonable manner to resolve the dispute.

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