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Perspectives

Condominium Board Recovers Legal Fees for Proceeding to Enjoin Transient Use of Unit

A condominium board of managers sued a unit owner for violating the condominium’s prohibition against transient occupancy of units. The New York City Environmental Control Board subsequently determined that the unit owner had unlawfully “permitt[ed] its unit to be used as a timeshare among its shareholders with no natural person in permanent occupancy.”

The board then filed another action seeking to recover its legal fees from the unit owner, relying on by-laws authorizing the board to address violations of the by-laws through “appropriate legal proceedings” and to abate “the continuance of any such breach [of the by-laws] at the expense (including attorneys’ fees) of the breaching Unit Owner.” The trial court’s decision awarding the board attorneys’ fees was affirmed. Although ordinarily an award of attorneys’ fees would be based on a “judicial determination” of a breach, here it was sufficient “the ECB decision squarely determined the question of transient occupancy at issue in the earlier action.” “While it would have been the better course for [the board] to have sought its fees in the [court] action predicated upon the same violation,” the court properly treated the fees as part of a common charges lien that the board was seeking to enforce in the second action. Board of Managers of the Peregrine Tower Condominium v. New York City 2014 LLC, 143 N.Y.S.3d 199 (App. Div. 1st Dep’t May 4, 2021).