RPAPL 2001 Does Not Serve As Time-Bar to Condominium Board Requesting That Unit Owner Remove Structures From Outdoor Space

September 7, 2023New York Law Journal

Andrew B. Freedland and Deborah Koplovitz wrote an article for the New York Law Journal's Condominium and Cooperative column discussing a recent case filed by a condominium unit owner that touches on concerns related to the use of outdoor space associated with a cooperative or condominium apartment, such as who actually owns the space and if costs associated with the use of outdoor space can be charged.

A recent case filed by a condominium unit owner involved many of these questions, although the decision by the Appellate Division, First Department addressed only the viability of the condominium’s two counterclaims against the unit owner, which were for injunctive relief and declaratory judgment that the unit owner had violated the condominium’s by-laws, and for a court order requiring that a structure which was built in the backyard be removed. Schoen v. Bd. Of Managers of 255 Hudson Condominium, 216 A.D.2d 536 (1st Dept. 2023).

The Schoen plaintiff appears to have initially filed the complaint after that board of managers imposed a license fee and additional monthly common charges after changes to existing structures in the backyard, which a predecessor in interest had initially erected, were made. After the unit owner filed suit, the board then counterclaimed for more permanent changes to the space itself, and for an injunction requiring the removal of the structures there.

In response, the plaintiff filed a pre-answer motion to dismiss the board’s counterclaims, asserting that under Real Property Actions and Proceedings Law (RPAPL) §2001, the defendants’ counterclaims were time-barred.

Because the structures were initially built in the backyard by the predecessor in interest, and because the condominium did not counterclaim for their removal for seven years after the completion of the initial enclosure, theSchoenplaintiff argued that the counterclaims should be barred by RPAPL §2001.

The Appellate Division, First Department disagreed, affirmed the ruling of the Supreme Court, New York County, and permitted the counterclaims to proceed, including the counterclaim for an injunction requiring that the structure be removed from the backyard.

TheSchoen court stated that the condominium was not seeking to "enforce a negative easement or restrain plaintiff from having a structure on her land because the structure was actually on land owned by the condominium as the backyard area was a limited common element and the plaintiff has an affirmative easement for its exclusive use."

Because only the statute of limitations issue has been addressed for the moment, these parties will continue to litigate the other issues in the case, which relate to whether, under Section 6.6.2 of the by-laws of the 255 Hudson Condominium, the plaintiff and/or the predecessor-in-interest sufficiently secured the board of managers' approval for the work, and not just the managing agent.

Attorneys advising boards of managers of condominiums, and unit owners, should pay close attention to the provisions of the Condominium Act, the declaration and the by-laws since Section 339-j of the Condominium Act requires compliance with the by-laws and rules and regulations.

This is discussed in the full analysis that originally appeared in the September 7, 2023 publication of the New York Law Journal. Access may require a subscription.

For more information on condominium and cooperative law matters, please contact:

Andrew B. Freedland at +1 212 592 1623 or [email protected]