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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 32341
Experience:  Began practicing law in 1992
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What can be done if directors of Condo allow personal use of

Customer Question

What can be done if directors of Condo allow personal use of common areas. This is a 70 unit condo The directors themselves, alone with others, have put storage units in common areas of trash room and garage. When you bring it up at meetings they just say "we are looking into that". The named committee they appointed over 2 years ago,said they are trying to find space for the other 28 people that do not have them. They also allow these trash storage units in the LIMIITED common areas. The doc clearly state Limited common areas are for "intended use only" meaning parking. The directors have been told many times this cannot be but nothing is done about it. What should be our course of action to correct this.
Submitted: 6 months ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 6 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

First, you have to look at the paperwork setting forth the rules and procedures of the owners association and see what those papers tell you that you are supposed to do. Usually the bylaws or other paperwork set out the proper procedures that you have to go through to address complaints.

However, if you have already done that, or if you do that and don't get any results, then the only other step is to file a lawsuit and ask the court to issue an injunction preventing the board from acting against the rules. In this injunction you can ask the court to address multiple issues or simply to act on the one dealing with the common areas. You will want to hire a lawyer to help you with this since injunctions are extremely difficult and, in addition, if you make a mistake then the judge is required to deny the request.

The steps to an injunction are:

1) An Application for TRO (Temporary Restraining Order) is filed along with supporting evidence such as affidavits. Usually the Application for Injunction is made at the same time. The TRO is a temporary measure and is not absolutely required before you get an injunction.
2) An Ex Parte (without the other side present) Hearing is conducted and the judge either issues the TRO or denies it. If the TRO is issued the judge orders a bond set in a sufficient amount to compensate the other side for any damages accumulated while the TRO is in place if the applicant fails to prove their right to an injunction.
3) A hearing on the TRO is set.
4) The TRO and notice of Hearing is served on the defendant.
5) The defendant should immediately begin following the judge's orders.
6) The TRO hearing is held and each side has an opportunity to present evidence and question witnesses.
7) The judge makes the decision on whether to convert the TRO to a Temporary Injunction or not.
8) If the TRO is converted to a Temporary Injunction then the judge sets a new bond to be in place.
9) Discovery is conducted by both sides.
10) A request for hearing date is made on the matter of converting the Temporary Injunction into a Permanent Injunction.
11) The hearing/trial is held on the Permanent Injunction and the judge issues a ruling.

These are what are known as extraordinary remedies and the procedural rules for these as well as the case law are EXTREMELY specific and difficult. If ANY mistakes are made the judge has no choice but to deny the relief and will not likely reconsider it in the future.

Just as an example, getting injunctive relief, both temporary and permanent, requires that evidence be offered of:
1) An immediate need,
2) Which, if not granted, will result in irreparable harm,
3) With no adequate remedy at law, and
4) (on temporary order) The person requesting the injunction is likely to succeed at a full trial on the merits.

If evidence is not offered to meet these four requirements, in a manner that the judge knows this is what the evidence shows, then the petition will be denied.

There are more requirements than this depending on the exact facts of the case but it is very, very easy to mess up one of these and end up having to pay damages to the other side just because your paperwork wasn't done properly.

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