Expanding a Condo Unit into Limited Common Area Without Consent – Can You Do It?

The New Hampshire Supreme Court addressed this issue in Moda et al. v. Fernwood at Winnipesaukee Condominium Association, 2025 N.H. 65 (November 26, 2024).

Background

Generally speaking, all condominium unit owners may use a condominium’s common areas and contribute toward the maintenance and repair of the common areas.  Only specified unit owners may use a condominium’s limited common areas, yet all unit owners must contribute toward the maintenance and repair of limited common areas. Examples of limited common areas may include decks, driveways and small lawn areas adjacent to units.  Two reasons for community-wide cost sharing of limited common area are safety and preserving aesthetic aspects of the condominium.

Fernwood at Winnipesaukee Condominium consisted of eight units. Robin and Phyllis Gelinas, owners of one of the units, sought to enlarge their unit by at least 32 square feet into their adjacent limited common area. During the condominium association’s annual meeting in June 2021, they presented their proposal, which the association’s board of directors approved. The Gelinases then completed the expansion.  The actions of the Gelinases and the association effectively reduced the amount of condominium limited common area and expanded the size of their unit.

Anthony and Rosemarie Moda and Anthony and Olga Alba, owners of two other units, filed suit in December 2021 alleging the expansion improperly reassigned limited common area, violating RSA 356-B:19.  RSA 356-B:19 states, in part:

All assignments and reassignments of limited common areas shall be reflected by the condominium instruments. No limited common area shall be assigned or reassigned except in accordance with this chapter. No amendment to any condominium instrument shall alter any rights or obligations with respect to any limited common area without the consent of all unit owners adversely affected thereby as evidenced by their execution of such amendment, except to the extent that the condominium instruments expressly provided otherwise prior to the first assignment of that limited common area.

Because expansion of a unit into limited common area reduces the amount of limited common area, a proposal to do that implicates RSA 356-B:19, I.  The next question is whether any unit owner will be “adversely affected” by the proposed change.  If yes, then the approval requirements of RSA 356-B:19, I require unanimous consent of those owners unless the condominium instruments expressly permit that type of change.  If no unit owner is adversely affected, then the inquiry under that statute ends and no consent of unit owners is required.  (This case only dealt with RSA 356-B:19.  Other statutes or provisions of the condominium instruments may apply.)

Superior court proceedings

The superior court ruled the plaintiffs were “adversely affected” by the proposed change because the expansion violated their property rights since they own the limited common area ‘collectively in an undivided share.’ But the court permitted the expansion because it found the Fernwood declaration of condominium expressly provided for the Gelinas expansion without the need for consent from all adversely affected unit owners.  The plaintiffs appealed.

Supreme Court appeal and decision

The Supreme Court disagreed with the superior court “that, as a matter of law, losing a percentage of an ownership interest in limited common area — alone — adversely affects all the other unit owners.  The Gelinases had the exclusive right to use the limited common area where the expansion occurred. The plaintiffs had no right to use that limited common area either before or after the expansion.” The Court concluded that the “trial court erred in ruling that, as a matter of law, the expansion adversely affected all unit owners.” The Court remanded the case to the superior court for further proceedings.

As to whether the condominium instruments expressly permitted the change, the Court found they did not.  Without quoting each of the provisions cited by the court, the court found that the documents created easements “to account for unforeseeable or de minimis encroachments, not for encroachments created by the enlargement of a unit such as the one at issue here.”

The net result of the decision is further proceedings in the superior court to determine whether the plaintiffs have been adversely affected by the Gelinas’ expansion.

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