“A condo owner on my building, added an extra room to her condo in our common basement, now the basement is getting smaller and her condo is getting bigger. Is it fraud or theft to the member association? What can we do? She has been adding space to her condo for a long time. Where do we go for legal help?”

—Frustrated Shareholder

“The condominium owner taking the building's basement space for her own without the consent of the other unit owners is both unjust and unlawful,” says attorney Christian P. Daglieri of the New York-based law firm of Schechter & Brucker, P.C. “The owner must understand that she owns only a partial interest in the space in question and she has no right to prevent the other owners from its usage and enjoyment or to unilaterally enlarge her unit for her benefit at their expense.

“In a condominium, owners both own their unit in fee simple and also share ownership in the common areas of the building (i.e. lobby, basement, halls, roof) with their fellow unit owners. The owners each pay a percentage of the fees associated with the general upkeep, repairs and maintenance of these common areas. It should also be noted that a unit owner's monthly common charges are generally based upon the size of their unit. Here, this owner has effectively increased her own personal space and decreased the common space for the remaining owners while her common charges have remained the same.

“Although the unit owner may believe she is the owner of this additional space, her conduct is akin to a trespass. The condominium board could elect to commence litigation against her and compel her to restore the unit and the basement to the condition it was in prior to her wrongful taking.

“If, however, the building determines it does not want the space back (for example, the space may not be necessary for essential functions of the building or is excess space not being utilized by other owners), then the board may elect to enter into an agreement with the owner. The parties may work out an amicable agreement granting the owner a revocable license to the space she has already "taken.” The licensed space would continue to be owned by all of the unit owners, but this individual owner could have exclusive right to utilize the space in question. The condominium would collect an annual or monthly licensing fee for the owner's exclusive usage of the space and the license agreement would include maintenance and repair obligations for the space for the duration of the license period, any rights the owner has to alter the space and the parties termination rights, among other items that may be agreed upon. This could be a way for the building to make money and have an additional stream of income.”