A condominium association’s attempt to allow each homeowner to have exclusive use of a boat slip was recently torpedoed by the Maryland Court of Special Appeals.
The court ruled that the board of directors of a waterfront condominium with 8 owners and 8 boat slips, which were designated as general common elements, did not have the authority to lease the boat slips for 10 years to individual unit owners for their exclusive use even though all but one owner supported the leasing plan.
In Emerald Bay Townhouse Condominium v. Cioffioni, the intermediate appeals court rejected the contention of the condo association that the long term leases were allowed by the Maryland Condominium Act, Section 11-125, and the condominium bylaws which authorize easements, licenses and leases of the common elements in excess of 1 year with the approval 66 2/3 percent of unit owners and their lenders. The court reasoned that, since the boat slips were general common elements owned in common by all unit owners, the board could not lease slips for exclusive individual use without the unanimous consent of all unit owners.
According to the appellate court, Section 11-125 of the Condo Act does not allow the grant of an exclusive right use of the general common elements. Rather, it only allows the lease of such common elements to others in addition to the use by unit owners, and does not allow the property rights of the unit owners to be redefined by granting a unit owner an exclusive right to use a portion of the common elements.
The Emerald Bay decision is “unreported” so it may not be cited as precedent for other similar situations. However, it is instructive on how a 3-judge appeals court panel views the exclusive use of “general common element parking spaces, whether for cars or boats, without the unanimous consent of the unit owners”.