CONCORD, N.H. — The New Hampshire Supreme Court has ruled that attic space above condominium units is “limited common space,” rather than the property of a single unit, and that an owners’ association was within its authority to assess all building residents for attic mold remediation. Carleton v. Edgewood Heights Condominium Owners’ Association, No. 2006-404 (N.H. Sup. Ct.).

The high court’s Nov. 8 opinion hinged on a definition of “upper most ceiling,” which the majority found did not include anything above an individual unit’s living area.

Bukk G. Carleton, who owns 14 “garden style,” or apartment, units at Edgewood Heights Condominiums, sued the condo association after it assessed him for remediation of mold discovered in attic spaces above several “townhouse” units at the complex.

In making the assessment, the Edgewood Heights Condominium Association relied on language in a 1986 condominium declaration allowing for special assessments for common areas, and its interpretation that attic spaces above the townhouse units were not part of those units.

The association cited Article 2-301 of the declaration, which stipulates that one horizontal boundary of the townhouse units, is “the unfinished or undecorated interior surfaces of the upper most ceiling.”

The trial court found for Carleton, ruling that the association “apparently concludes that a ‘ceiling’ must be finished which contradicts the definition contained in the Declaration of an ‘unfinished … interior of the upper most ceiling.”

In reversing that finding, Supreme Court Justice Gary E. Hicks said the majority disagreed with the trial court’s interpretation of the declaration.

“The issue is not whether a ceiling must be finished or unfinished, but whether the attic spaces have a ceiling at all,” Justice Hicks said, referring to dictionary definitions of “ceiling.”

The justice said other provisions in the declaration also support that view, including the “Description of Common Areas,” which refers to “beams and supports, and roof of said buildings….”

“As the beams, supports and roof are defined to be limited common area, they cannot also be part of a unit and therefore cannot constitute a ‘ceiling’ in a unit,” Justice Hicks said.

The court did not reach the alternative issue raised by the association of whether mold remediation is ordinary maintenance of a common area, or repair that must be born by adjacent owners.

Chief Justice John T. Broderick and Justice Linda S. Dalianis concurred in Justice Hicks’ opinion.

Justice Richard E. Galway wrote a separate dissent, which Justice James E. Duggan joined, saying he disagreed with the majority’s definition of “ceiling.”

“The majority concludes that the uppermost surface of the attic space cannot constitute a ceiling for purposes of establishing a townhouse unit’s boundary because there is no ‘inside lining.’ I disagree,” Justice Galway wrote.

“In order to reach this conclusion, the majority discount’s the attic’s existing uppermost interior surface, the underside of the roof, and requires the use of some other material, such as drywall, to line the apace. I do not believe such additional material is necessary to constitute a ceiling,” Justice Galway explained.

R. Peter Decato of Decato Law Office in Lebanon, N.H., represented Carleton.

Scott H. Harris and Kristin M. Yasenka of McLane, Graf, Raulerson & Middleton in Manchester, N.H., represented Edgewood Heights Condominium Owners’ Association.
 
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