Q&A: Structural vs. Non-Structural Changes

The original condo declaration, bylaws, amendments and house rules allow for  renovations without board approval to interior units if they do not affect  common area are not structural in nature. I installed a wall partition (does  not affect a bearing wall) in the dining room, which has created an additional  room. The condo attorney is arguing that when you change the “character” of a unit this is considered structural. In addition the board is upset that  the original floor plan has been altered. I am an investor in this complex. I  do not intend to have overcrowding in the unit—the unit does have greater rent ability/potential for profit. I obtained all  proper permits from the town for wall partition. The condo attorney has since  sent a cease and desist letter to the town to not issue such permits and  certificate of compliance anymore. I intend to fight this issue by asking the  court for a permanent injunction. Am I being reasonable? Is the condo attorney  right that structure equals character?  

—Awaiting Walls  

 “As an attorney who works with co-ops and condominiums and also handles  construction issues, I must say that I do not think this is as black and white  as you are describing it,” says C. Jaye Berger, Esq., a New York City-based attorney whose practice focuses on  real estate and construction law and litigation. “First, it is increasingly common for condominiums to have such rules, which  makes them more like co-ops when it comes to renovations. Therefore, the answer  to this question is equally relevant to readers living in co-ops. The point of  having such rules is not to drive you crazy or make your life more difficult,  but is instead to protect the safety of you and your neighbors. Believe me I  have heard about some crazy renovation work over the years that was done  without either board approval or building department approval.  

 “The situation you describe seems to me to be a hybrid of structural and  non-structural issues. Even though the building department in the town where  you live has approved it—that is only half of the equation. The fact that you even had to get permits  from the town to do this work tells me that it is considered ‘structural’ by the town. If you were just painting your apartment, we all would agree that  neither your board would be involved nor the town building department. You  would not need permits to paint.  

 “Without knowing all the facts, I can only guess about certain things, but I  would guess that the reason your town required permits is the same reason why  the condominium’s attorney is objecting. Changing the room count is not a minor thing. Consider  this example. I know of a situation in a co-op apartment where the shareholder  put up several non-load bearing partitions to create little living areas, then  rented them out as rooms. When the board sued the shareholder, they were  concerned not only about the subletting, but about the renovation. Putting up  partitions changes the Certificate of Occupancy because it changes the room  count. Changing the Certificate of Occupancy is much like applying for a permit  to renovate an apartment.  

 “You say that the unit has ‘greater rent ability/potential for profit.’ Isn’t that just like the example I gave above, but on a smaller scale? You are  creating new rooms by putting up a partition. They are rooms without windows  and without the characteristics of bedrooms. In an extreme case, there have  been fires in apartments where the room count had been changed with partitions  and the firemen became disoriented because the actual floor plan was different  from the layout they had been given.  

 “The board has the right to make appropriate rules and regulations for the  building. Sometimes they are the same as those for the building department, but  other times they may be more restrictive. In other words, the building  department may allow something, but for some reason your building may not. They  have the right to do that under the “business judgment rule.” It refers to the fact that the board has been given the authority by those who  elected them to use their “business judgment” to decide what is best for the building. If the board turns down an application  to renovate an apartment, the rule would apply. Trying to get an injunction on  this issue may not be the best use for your money.”  

 

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