Condo Media - November 2022 - 49

● The problem in scenario 1 is sewerage,
a substantial health issue, while
the problem of an affected view in
the summer in scenario 2 is not substantial
as he would still have a view
of the water for 9 months of the year.
● Scenario 1 presents a violation
of health laws, while the ask in
scenario 2 presents a variation on
an existing, law-abiding regulation.
● The fi rst will not harm the association,
while the second will harm the
association by subjecting it to new
inspections and newer and more
onerous restrictions, which could
lessen each person's respective view
corridors and possibly deny access
to the subject bay and waterway.
● While there is plenty of authority
to force the association to make
the repairs to the system in the fi rst
example, in the second, attempting
to resolve one unit owner's problem
could cause numerous problems for
the rest of the condominium.
● In the fi rst scenario, RIGL 34-36.13.02
(a)(6) gives the association
the authority and obligation to
regulate the use, maintenance,
repair, replacement, and modifi cation
of common elements, which
here would require the association's
board to do a capital study of the
system, fund the repair and replacement,
and if insuffi cient funds,
specially assess to deal with it.
● While scenario 2 does not require
the board to apply to CRMC to cut
the growth in the summer, which
could actually worsen the problem
for everyone else, support can
be found for its refusal to do this
in RIGL 34-36.1-3.02 (a)(17) to
exercise any other powers necessary
and proper for the governance
and operation of the association.
Here, the board, knowing that just
the application for revision of the
existing plan could make things
worse, can legitimately and in good
faith deny the unit owner's request
to alter the plan.
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November 2022 CONDOMEDIA 47
I have always believed when
dealing with government agencies,
it's best not to bring them onto the
property unless there is a legitimate
purpose. It's not exactly like letting
a fox into your henhouse, because
most government agents mean
well, it's just that sometimes when
a government official is on the
property, aside from addressing the
issue at hand, they may " find " other
problems that would need to be
addressed - problems that are not
necessarily dangerous, but ones that
the association is neither ready for
financially nor willing to resolve or
tackle. As always, there are exceptions
to the rule.
So, I always advise boards and
unit owners to attempt to resolve
issues in house with their own
experts before bringing in the
government.
So then, in the final analysis,
given the circumstances in scenario 1,
it might be worth bringing the fox
into the henhouse, while in scenario 2,
I see no justification for that unit
owner to take that drastic step.
■ FRANK A. LOMBARDI, ESQ., CCAL
IS A PARTNER IN LOMBARDI LAW
GROUP AND A FELLOW OF THE
CAI COLLEGE OF COMMUNITY
ASSOCIATION LAWYERS (CCAL).
Condo Media - November 2022

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