Page 7 - New England Condominium June 2021

Which Law is the Right Law to Follow? Q My condo was formed in 1974 under the old condo law, RSA 479. e new condo law, RSA 356, was passed in 1977. If we update our condo docs now, which law are we re- quired to follow? Note we are exempted from 356 under paragraphs I, II, III in RSA 356. But once we start amending our docs, which law prevails? —Confused Board Member A “ ere is nothing in the New Hampshire Condo- minium Act that notes if an association is formed under the pre- cursor to RSA 356-B, RSA 479-a, the Land Use Act, that it has to abide by the terms of the Condominium Act, but the practi- cal reality is that it would,” says attorney Robert E. Ducharme of Portsmouth, New Hampshire. “ e Condominium Act notes that amendments to a declaration or bylaws created under the Land Use Act, RSA 479-A, are not bound by the terms of the Condominium Act unless the amend- ment has to do with ‘creating 10 or more additional units’ in which case the terms of the Condominium Act would apply to the Amendment. So, no, an amendment to documents created under RSA 479- A would generally not be bound by the terms of the Condominium Act. “But three points are worth brie y not- ing: First, all amendments I have seen to documents created under the Land Use Act contain language binding them to the updated Condominium Act. “Second, court cases in New Hamp- shire are usually decided on how the pro- visions of the documents themselves have been applied in any given situation, not by simply looking at the statute. For in- stance, if a board of directors found a pet to be a nuisance, the decision on whether the board’s decision was correct would be based upon the facts of the case, not on the language of either statute, and on how other courts have looked at such fact- driven situations. “ ird, the real question is why an as- sociation would want to avoid coming under the guidance of the Condominium Act. ere is a reason it was created and a reason the Legislature keeps on going back and tweaking it and not the Land Use Act. It is much more thorough and NEWENGLANDCONDO.COM NEW ENGLAND CONDOMINIUM -JUNE 2021 7 QUESTIONS & ANSWERS Legal Q A& lends more guidance to associations on how to operate than the Land Use Act did and does. “Amending documents but trying to make sure they are not bound to the terms of the Condominium Act would likely lead a court to question why such an as- Video Doorman Safe Building - NE Condominium Ad ONLINE VERSION - 05.05.21 - 7.5’’ x 9.5” Junior Page Ad https://docs.google.com/forms/d/e/1FAIpQLSfIyzwhEytWODlChwI_9a77nLq-d1Y5G7DKp5jIBzdW-YesnA/viewform Available through American Remote Video Call today for a FREE building survey and proposal – 877-3-VIDEODM (877-384-3363) www.videodoorman.com • Anti loitering with proprietary video analytics • 95% of building crime begins at the front entrance • Remote security and surveillance 24/7 • Safe entry access & CCTV coverage • Secure tenant fobs to enter and access building • Two way communication with delivery people • 24/7 emergency call button in lobby • Door ajar notification Only Video Doorman Safe Building gives you, and your tenants, real peace of mind. ® Remote building security and CCTV surveillance 24/7 for about $ .75 per hour plus... optional safe package delivery If you want real peace of mind that a safe building brings, contact Video Doorman Safe Building TODAY. • Anti Loitering Digital Analytics • CCTV with live operators 24/7 • Prevents crime ® FOR A FREE BUILDING SURVEY AND PROPOSAL CLICK HERE sociation is trying to avoid being bound by an Act meant to help guide all condo- minium associations, an act of avoidance upon which a court would likely not look kindly. Better to work within a law than to try and nd ways around a law.” ■ Disclaimer: e answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your speci c circumstances. Always seek the advice of competent legal counsel or other quali ed profes- sionals with any questions you may have regard- ing technical or legal issues.