A unit owner sought to expand their unit by building additional living space on the roof of the association. The declaration, like all declarations, defined the various units and their locations. Unlike many declarations, this one allowed top floor unit owners to expand their units on the roof of the building. Expanding a unit would, by definition, take common element and convert it into unit space. Although almost everyone involved would rather have avoided amending the declaration to allow the build-out on the roof, the Husch Blackwell Condominium & HOA Law Team strongly advised against simply allowing the construction as it would potentially give rise to a number of possible claims against the association board, the unit owner who was seeking the expansion, and the association. In the end, the unit owner’s attorney and the association were able to agree upon the language needed to amend the declaration to the ultimate benefit of all (the roof unit could be built and the other unit owners would pay lower assessments as their percentage interest was reduced as a result of the additional square footage in the association).
Lesson: Sometimes there is no easy way around a problem, but recognizing when that is the situation and developing a plan to tackle the problem may result in a solution that benefits everyone.