by Bree Anne Stopera
It is not uncommon for a condominium board to discover, years after the fact, that a co‑owner addition exists on the general common elements. This type of extension is commonly referred to as an encroachment, meaning a situation in which a co‑owner constructs or extends an improvement, such as a patio, deck, porch, or similar exterior feature, beyond the unit boundaries and onto common element property.
These situations most often arise long after the encroachment was installed, sometimes through multiple ownership changes and without any formal record of approval. That historical context can complicate a board’s response and increase the risk of inconsistent enforcement if the issue is not addressed deliberately and with appropriate safeguards.
Boards frequently make this discovery and, concerned about legal exposure, ask a straightforward question: can this type of encroachment be approved? While the answer may be yes in limited circumstances, approval must be approached thoughtfully, with a clear understanding of the legal, practical, and long‑term implications for the Association.
Board Authority to Approve Encroachments
As a general matter, co‑owners should not encroach upon the common elements, and governing documents should not be interpreted in a manner that encourages or permits such conduct. Common elements are shared property, and unauthorized use or occupation of those areas can create long‑term legal, operational, and aesthetic issues for the Association.
Importantly, the mere passage of time does not obligate a board to approve an encroachment, nor does long‑term use create vested rights in common element property. Approval is discretionary, not mandatory, and should never be viewed as automatic simply because an encroachment has existed without prior objection.
That said, situations do arise where an encroachment is relatively minor in scope and has existed for some time without apparent issue. In limited circumstances, particularly where the encroachment is de minimis (i.e. minor, insignificant, or trifling), does not interfere with the rights of other co‑owners, and its removal would create unnecessary conflict or expense, a board may consider whether approval is appropriate. Even then, the decision should be grounded in a careful analysis of risk and precedent.
An approval will effectively establish an association precedent and may lead to additional requests or similar unapproved installations. Over time, inconsistent treatment of encroachments can expose the Association to claims of selective enforcement or arbitrary decision‑making. What appears to be a minor accommodation today can create long‑term legal, administrative, and operational challenges if future boards are constrained by past approvals. Consistency in decision‑making is therefore critical, particularly where the board is addressing an unapproved encroachment after the fact.
When evaluating whether an encroachment may be appropriate for approval, boards should consider, at a minimum:
- Whether the encroachment is limited in size and scope;
- Whether it interferes with association access, drainage, utilities, or maintenance obligations;
- Whether it impacts the structural integrity of any common elements;
- Whether it diminishes another co‑owner’s use or enjoyment of the property;
- Whether it complies with architectural guidelines or established aesthetic standards; and
- Whether it will affect future repair, replacement, or capital improvement projects.
Prospective Requests Versus After‑the‑Fact Encroachments
Where a co‑owner seeks approval before installing an encroachment onto the general common elements, the request should be subject to heightened scrutiny and, in most cases, denied absent compelling justification. Unlike after‑the‑fact situations, the board is not being asked to manage an existing condition, but rather to knowingly authorize a new intrusion onto shared property.
Boards should be especially cautious in granting prospective approvals, as doing so may significantly limit their ability to deny similar or more expansive requests in the future. If similar encroachments have not been approved in the past, a board should proceed with caution and carefully evaluate whether approval would undermine the Association’s long‑term control of its common elements.
Boards should also confirm that no provision of the governing documents expressly prohibits such encroachments. Where an encroachment is expressly prohibited, the board must follow the governing documents as written.
Exclusive Use Versus Common Element Status
Another important consideration is the distinction between use and ownership. Even where a patio, deck, or similar improvement extends into general common element space, the legal classification of that area does not change. It remains part of the general common elements, and the co‑owner does not acquire exclusive ownership rights to the land.
While the practical likelihood of another co‑owner using that same space may be low, particularly where it is immediately adjacent to the unit, the legal right to do so remains unless the condominium documents are formally amended, which typically requires co‑owner approval.
Boards should be prepared to clearly dispel common misconceptions that long‑term use, silence by prior boards, or owner investment in an improvement somehow converts common element property into exclusive use or private ownership. Absent a formal amendment, no such conversion occurs.
Liability and Insurance Considerations
Liability exposure should be carefully evaluated before approving any encroachment. Because the encroached area remains part of the common elements, the Association may be named in any claim involving injury or property damage arising from the improvement.
This risk may arise from structural issues, trip‑and‑fall conditions, drainage problems, or interference with maintenance activities. Boards should consult with the Association’s insurance carrier before approving any encroachment to confirm that coverage will not be jeopardized and that liability protection will apply if a claim is asserted. Insurance carriers may also evaluate whether an association has knowingly permitted private improvements on common elements without adequate contractual protections, which can affect both claim handling and future coverage terms.
The Importance of a Recorded Modification and Alteration Agreement
If, after careful consideration, a board elects to approve a de minimis encroachment, that approval should be conditioned upon the co‑owner entering into a written Modification and Alteration Agreement. Absent such an agreement, the board should require removal of the encroachment.
The agreement should provide strong protections for the Association, including provisions that the co‑owner is solely responsible for all maintenance, repair, replacement, and insurance related to the improvement; assumes all costs associated with the encroached area; indemnifies and holds the Association harmless from any claims arising out of the modification; and releases the Association from liability related to the approval and continued existence of the improvement. Execution of this agreement should be a condition of allowing the encroachment to remain.
Equally important, the agreement should be recorded with the County Register of Deeds against the unit. To record a Modification and Alteration Agreement, the document must be signed and notarized, the applicable formatting requirements must be satisfied and recording fees paid. Recording ensures that future purchasers are on notice of the encroachment and that the obligations run with the unit. Without a recorded agreement, the Association may face enforcement challenges when ownership changes.
Practical Takeaways for Boards
- Encroachments onto common elements are not favored and should never be encouraged.
- Long‑standing encroachments do not create ownership or approval rights.
- After‑the‑fact approvals should be rare, limited, and carefully documented.
- Prospective encroachment requests should be approached with heightened caution.
- Any approved encroachment must be governed by a written, recorded modification agreement.
- Preservation of common element integrity should generally outweigh individual convenience.
Conclusion
Condominium boards generally retain discretion to approve minor encroachments into common element space where the impact on other co‑owners is negligible. That discretion, however, must be exercised deliberately and with appropriate safeguards. Boards retain authority to require removal of unapproved encroachments, but may, in appropriate and limited circumstances, approve them after the fact.
When handled properly, these situations can be resolved without undue conflict or exposure. When handled informally or without formal safeguards, they can bind future boards and expose the Association to liabilities that persist for years. When in doubt, boards should consult experienced condominium counsel before granting approval.
Author: