It’s not unusual for condominium documents to set aside parts of the development’s common area for the exclusive use of particular units. This device allows the developer to offer a degree of privacy in decks, driveways, garages, attics, and similar spaces that are affiliated with, but outside of, a unit. But how exclusive is an exclusive use area? The Massachusetts Appeals Court answered this question in a recent decision.

Calvao v. Raspallo (pdf) involved a two-unit residential condominium in Dennis, “down the Cape.” The defendant Raspallo made some renovations to her unit, including an addition that encroached by 111 square feet into the exclusive use common area next to her unit. She obtained permits for this work after the developer appointed her sole trustee of the condominium. The owners of the other unit, the Calvaos, sued in Superior Court, where a judge ruled that Raspallo’s appointment as sole trustee was invalid and ordered the addition removed. Raspallo appealed.

The Appeals Court first noted that expansion of a condominium unit into a common area requires the unanimous consent of all unit owners, even if (as here) the master deed purports to allow the trustee to make this decision herself. Moving past the authority issue, the court then addressed Raspallo’s argument that, since her addition only occupied an area that she had a right to use exclusively, the intrusion on the other unit owner’s rights was de minimis, and removal was too harsh a remedy. The court was unmoved, responding:

[W]e recognize that a unit owner has legal ownership of the common areas, whether or not they are for the exclusive use of another unit, and cannot be deprived of that ownership without her consent. Regardless of whether there is a practical benefit to the legal interest that the Calvaos hold in Raspallo’s exclusive use common land, Raspallo may not unilaterally assert fee simple ownership over it.

On this basis, the Appeals Court upheld the Superior Court’s determination that the equities favored removal of the addition.

The simple lesson of Calvao v. Raspallo is that a unit owner’s undivided ownership interest in all condominium common areas – even areas under the exclusive control of another unit owner – is sacrosanct, and the courts will not tolerate even seemingly minor intrusions on that important property right.