Q My condo's board recently approved a plan to provide an office for our property manager. Since the building did not have a space for an office, they want to put up walls in one of our common areas, so the property manager has a place to work. I understand the property manager needs an on-site place to work, but it will shrink our club room considerably, which I assume was part of the price tag of my unit. Will this decrease unit values if the common area is compromised? Is it legal for the board to approve something like that?

—Legally Speaking

A “It is axiomatic that an association in New Jersey is governed by the Condominium Law NJSA 46:8B-1, et. seq. ('the Act') along with the governing documents of the condominium,” say partner Bruce Gudin and Anne Ward, attorneys at the law firm of Ehrlich, Petriello, Gudin & Plaza in Newark.

“As such, the association, and board acting on its behalf, must act in a manner consistent with the Act and the governing documents. The Act (46:8B-3(d)) defines 'Common Element,' in pertinent part, as:

“(ii) as to any improvement, the foundations, structural and bearing parts, supports, main walls, roofs, basements, halls, corridors, lobbies, stairways, elevators, entrances, exits and other means of access, excluding any specifically reserved or limited to a particular unit or group of units;

“(iv) portions of the land or any improvements or appurtenance reserved exclusively for the management, operation or maintenance of the common elements or of the condominium property;

“(vii) all other elements of any improvements necessary or convenient to the existence, management, operation, maintenance and safety of the condominium property or normally in common use;

“N.J.S.A. 46:8B-6 describes “Common elements” and states:

“The proportionate undivided interest in the common elements assigned to each unit shall be inseparable from such unit, and any conveyance, lease, devise or other disposition or mortgage or other encumbrance of any unit shall extend to and include such proportionate undivided interest in the common elements, whether or not expressly referred to in the instrument effecting the same. The common elements shall remain undivided and shall not be the object of an action for partition or division. The right of any unit owner to the use of the common elements shall be a right in common with all other unit owners (except to the extent that the master deed provides for limited common elements) to use such common elements in accordance with the reasonable purposes for which they are intended without encroaching upon the lawful rights of the other unit owners.

“Thus, all common elements are owned by all unit owners in proportion to their undivided percentage interest. General common elements are those common elements which all unit owners have a right to use on a non-exclusive basis. “Limited Common Elements” as “those elements which are for the use of one or more specified units to the exclusion of other units.” N.J.S.A. 46:8B-3(k)

“This means that a club room created from a common area is owned by all unit owners and should be available for their use.

“With regard to the arrangement between the board and the property manager concerning use of a common area, additional information is required. Did the board lease or simply provide the area to the property manager? Is the property manager’s duty solely to the condominium or is it a commercial enterprise with clients other than the condominium? Are the erected walls temporary or permanent structures? Perhaps more poignantly, did the board follow the provisions of the condominium’s master deed and bylaws concerning use of the common elements? Any agreement deviating from provisions of the Act or bylaws is simply “invalid” N.J.S.A. 46:8B-7.

“In the absence of creation of a specific power in the governing documents, there can be a real question as to whether or not a board has the authority to exclude unit owners from using a common area, even on a temporary basis. A power to rent the common elements to third parties might be incorporated into the bylaws of the condominium association. However, this is an uncommon provision.

“The situation you describe may be in direct contravention to the Act and to the condominium’s governing documents.

“You should clarify the situation by seeking more information from the board or its attorney (if it has legal representation), and by carefully reviewing the condominium’s governing documents.”