Cooperatives & Condominiums

Condo Board Had Authority To Lease Rooftop to Wireless Provider

Vassi v. Salem House Condo Board

NYLJ 7/16/10, p. 26, col. 3 Supreme Ct., N.Y. Cty. (York, J.)

Condominium unit owners brought this action seeking to enjoin construction of wireless facilities on the roof of the condominium building. The court denied the injunction, holding that the unit owners had demonstrated neither harm nor a right to be free of the facility.

The condominium board negotiated a lease of rooftop space with T-Mobile. The unit owners sought to enjoin T-Mobile's use of the space, contending that the facilities interfered with the use and enjoyment of the rooftop. They contended that the radio emissions would be dangerous to health and safety, and that the facilities would interfere with their use and enjoyment of the rooftop. They relied on an unsigned, undated declaration, which prohibits use of general common elements if that use encroaches on the rights of others to use those common elements. The roof is designated a common element.

In denying injunctive relief, the court first rejected the health and safety argument, noting that federal law precludes a state from regulating the placement of wireless facilities on the basis of the environmental effects of radio emissions. 47 USC ' 332(c)(1)(B)(IV). The court then held that the undated and unsigned declaration did not furnish sufficient basis to issue the injunction, and noted that even if the declaration were adequately proven, its language is not sufficiently specific about what uses interfere with others. Moreover, the court noted that the bylaws give the board power to relocate any portion of the common elements devoted to recreation. As a result, the board had power to enter into the disputed lease.

Condo Board Had Authority To Lease Rooftop to Wireless Provider

Vassi v. Salem House Condo Board

NYLJ 7/16/10, p. 26, col. 3 Supreme Ct., N.Y. Cty. (York, J.)

Condominium unit owners brought this action seeking to enjoin construction of wireless facilities on the roof of the condominium building. The court denied the injunction, holding that the unit owners had demonstrated neither harm nor a right to be free of the facility.

The condominium board negotiated a lease of rooftop space with T-Mobile. The unit owners sought to enjoin T-Mobile's use of the space, contending that the facilities interfered with the use and enjoyment of the rooftop. They contended that the radio emissions would be dangerous to health and safety, and that the facilities would interfere with their use and enjoyment of the rooftop. They relied on an unsigned, undated declaration, which prohibits use of general common elements if that use encroaches on the rights of others to use those common elements. The roof is designated a common element.

In denying injunctive relief, the court first rejected the health and safety argument, noting that federal law precludes a state from regulating the placement of wireless facilities on the basis of the environmental effects of radio emissions. 47 USC ' 332(c)(1)(B)(IV). The court then held that the undated and unsigned declaration did not furnish sufficient basis to issue the injunction, and noted that even if the declaration were adequately proven, its language is not sufficiently specific about what uses interfere with others. Moreover, the court noted that the bylaws give the board power to relocate any portion of the common elements devoted to recreation. As a result, the board had power to enter into the disputed lease.