A Condominium Board Can Dictate Removal of a Unit Owners Self-Built

On November 12, 2020, the Appellate Division, Second Department upheld the ruling of the Queens County Supreme Court that held the Board of Managers for a condominium had the authority to direct the unit owners to remove an exterior balcony enclosure that interfered with the condominium’s ability to perform façade construction. Board of Managers of Village Mall at Hillcrest Condominium v. Banerjee, 188 A.D. 777 (2d Dept. Nov. 12, 2020).

The Board of Managers in Banerjee commenced the underlying action in an attempt to compel the unit owners to remove a balcony enclosure, which was erected in 1979 and was ancillary to their unit. The unit owners did not receive prior board approval for construction of the balcony enclosure, which was required under the condominium’s by-laws, and by the Department of Buildings.

The trial court denied the unit owner’s motion for summary judgment concerning their claim for injunctive relief, and in turn, and granted the condominium’s motion to compel the removal of the balcony enclosure and declared that the board of managers was authorized under the condominium’s governing documents to revoke any prior permission concerning the erection of the balcony.

The Appellate Division, Second Department, affirmed the lower court’s ruling, and in doing so, held that regardless of any alleged prior written permission to install the enclosure the balcony enclosure n 1979, “under the by-laws, [the] consent could be revoked at any time and that, in 2016, the [Board] revoked its consent to all balcony enclosures as required by the by-laws.” The Appellate Division in Banerjee further reasoned that “…plaintiff further demonstrated that it decided to mandate the removal of all balcony enclosures to enable the completion and inspection of building façade and balcony restoration work so that the building could pass municipal inspection and have an architecturally uniform façade.”

In ruling in favor of the board of managers, the Appellate Division in Banerjee relied on the business judgment rule which “prohibit[s] judicial inquiry into the actions of a condominium board as long as the board acts for the purpose of the condominium, within its authority, and in good faith. The plaintiff met its burden on summary judgment by establishing that it acted in good faith, within its authority, and for the benefit of the condominium, when it mandated the removal of balcony enclosures in order to complete its façade renovation project.”

In sum, the Appellate Division in Banerjee ruled that the board of managers was within its authority to require the removal of the balcony enclosures, given its revocation of any prior permission, and desire to be in full compliance with applicable local laws.