In Board of Managers of * * * v. M*, a dispute arose between a condominium board and a unit owner regarding unauthorized alterations to the latter's unit. The Appellate Division, First Department, upheld the lower court’s ruling, which granted summary judgment in the condominium board's favor and dismissed the defendant’s affirmative defenses of waiver and equitable estoppel.
The condominium board argued that the unit owner, M, had violated both the alteration agreement and the condominium’s by-laws. To support this claim, the board submitted evidence, including affidavits from a contractor and a licensed architect, detailing numerous infractions. Among the unauthorized changes were the removal of a demising wall, the appropriation of common space, violations related to door width, barrier and banister heights, and turning radius requirements, as well as the improper relocation of risers servicing other units without adequate insulation and firestopping. While M* submitted an affidavit from his own expert to challenge some of these alleged statutory violations, he failed to rebut all the claims made by the board, particularly those concerning the alteration agreement and by-laws.
The court also dismissed M*’s affirmative defenses. The condominium’s declaration contained a no-waiver clause, which courts do not readily presume to have been waived. Additionally, New York law prohibits the waiver of statutory violations. M* attempted to argue that the board had implicitly approved his alterations through frequent inspections of his unit. However, his affidavits lacked specific details, such as dates, inspection conditions, and explicit acknowledgments of acceptance by the board. As a result, he failed to demonstrate that the board intentionally relinquished its right to enforce the alteration agreement.
Similarly, M*’s defense of equitable estoppel was rejected on the grounds that the alterations were governed by an express contract. Under legal precedent, equitable estoppel is generally inapplicable when an express contract explicitly governs the matter in dispute.
Ultimately, the decision reinforces the authority of condominium boards to regulate unit modifications and enforce their agreements. It underscores the importance of contractual provisions, such as no-waiver clauses, in preventing defenses based on implied consent. Moreover, the ruling serves as a cautionary example for condominium residents, illustrating the legal risks associated with unauthorized alterations made without board approval.
A cautionary tale for condo owners, that's for sure .... (There's no other way to construct that.)
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DECISION