Congratulations, you’ve bought a unit in a condo, co-op, or HOA! Now that you’ve got your deed or your shares certificate, it’s time to make all those alterations you’ve been dreaming of, adopt all those pets you’ve been helping down at the shelter, and of course throw a giant housewarming party!
Not so fast. Yes, you are a homeowner, but you are also a member of a common-interest community—and you are bound by the laws, rules, and regulations that govern such communities wherever you live. Before you make assumptions about your rights and responsibilities, as well as those of your building or association and its governing board, know that they are all delineated in the governing documents of your particular community. These may vary regionally in name and whether it’s a condo, co-op, or HOA, but the documents in question include some combination of a certificate of incorporation; a public offering statement or plan; a master deed; a declaration; bylaws; a proprietary lease; house rules; a declaration of covenants, conditions, and restrictions (CC&Rs); and/or rules and regulations.
Governing-document literacy enables the homeowner to avoid many of the disputes, log-jams, and headaches that arise with document ignorance—or violation—so it’s best to read ahead and understand.
Know Your Place
You’re reading this publication, so you already know where to turn for the best general guidance and resources geared towards multifamily buildings and communities in your region. But, as many of the attorney responses in our Legal Q&A column will demonstrate, answers to a vast majority of questions about your specific condo, co-op, or HOA can only be found in your community’s governing documents. These were provided to you along with or as a component of your shares certificate or deed.
Can’t find your copy? “In a co-op,” says attorney Kelly Ringston, partner at Braverman Greenspun, P.C. in New York City, “if you have misplaced your proprietary lease or the bylaws, the managing agent can give you a copy. And I think directing people back to those documents is the way to answer [the majority of shareholder] questions, telling them, ‘I’m giving you the whole set as a courtesy, please read.’” Ringston also notes that many communities keep electronic copies of their governing documents and other important files on their resident portals or websites for easy access and reference.
Condos, Ringston adds, are obligated to keep updated copies of their governing documents with the city registrar’s office in New York. “So if you don’t have a copy of your declaration and bylaws handy,” she continues, “anyone [in a condo] can log into the city’s website and pull up their documents just using their address. Super easily accessible.”
Other jurisdictions, such as New Jersey, include co-ops in their registered records requirements, says Gemma Giantomasi, practice group leader of the Real Estate, Development & Land Use Group at the law firm of Chiesa Shahinian & Giantomasi PC in Roseland, New Jersey. “Any amendments must also be recorded with the county register where the property is located,” she adds.
Often, purchasers in a condo, co-op, or HOA are first-time homebuyers, with their previous residential experience consisting of being tenants in someone else’s property. They are prone to assuming that their new apartment or unit operates similarly in that a landlord or some other entity is responsible for repairs, upkeep, and decisions about the building’s physical and financial operation. But in a common-interest community, the roles and responsibilities are different. Much of what is within the unit is the owner’s or shareholder’s responsibility to maintain, replace, and change. And every owner or stockholder shares the responsibility for the association’s or corporation’s governance via service on the board of directors, which has the legal authority—and duty—to uphold and enforce the provisions of the governing documents.
“Some people definitely don’t understand the boundaries between what they’re responsible for and what the association should handle,” says Bob Keegan, President with Dirigo Management Company in Portland, Maine. “They think they buy a unit, pay a monthly fee, and everything is taken care of. …We’ll have to explain that when they bought their unit, they signed off on a whole bunch of documents explaining the delineation of responsibilities between individuals and the association. Of course, when you’re closing on a home, you don’t necessarily read all of those docs with the keenest eye, but you have to learn eventually.”
First-time buyers might also assume that now that they own their home, they can do whatever they want in it. Taking down a wall or even repainting required someone else’s permission in their previous residential arrangement. But guess what? Community association and cooperative living comes with particular restrictions, too. “One of the realities of living in a co-op or a condo is that there are limits to what a resident can do in the common areas or in their apartment,” says Giantomasi. Those limits are the purview of the association’s or corporation’s board of directors, whose “power to adopt rules and regulations is required by law,” she continues. “Such rules and regulations most often govern the use and operation of the condominium and the condominium property and the use of the common areas, but may also govern what goes on in a residential unit.”
The extent and limits of board powers are another surprise to many new co-op or condo purchasers who neglect to read and understand their governing documents. For managers like Keegan, this can result in ‘chain-of-command’ issues. Residents new to community living might not understand the board’s role and consequently approach directors with requests or complaints when they should be going to management.
The importance of governing document literacy doesn’t end with first-time co-op/condo/HOA buyers. Ringston points out that especially in New York City, where most home ownership is in such a community, people moving among them tend to assume that one set of governing documents is like all the others. Yes, “they’re conceptually similar,” she says, “but they all have their own little things. In condominium documents, there’s always a paragraph about prohibited uses of residential units, and it’s normally all the same stuff. Then every once in a while you get a wonky one, like ‘can’t be used for musical instruction’… and then you have somebody who wants to teach piano out of their living room.” She points out that these issues popped up a lot during COVID, when more people were trying to find ways to conduct business (and an array of other activities) from home.
Moving from a condo or HOA to a co-op or vice-versa can also come with a learning curve. Ringston hears a lot from “folks that are coming from a cooperative or an apartment into a condominium [who] want to know why they can’t take action to evict their neighbor who’s blasting music at two in the morning. The condominium board can’t evict anyone [like a co-op board or landlord can]. And then going from condo to co-op, people that are making that transition are shocked at the level of control that a cooperative board has over alterations and sales and leasing. So you have to make sure that you’re familiar with the structure and the intricacies of your building.”
Governing-document literacy also contributes to the harmony and function of a given community. Gary Daddario, a partner with the law firm of Marcus, Errico, Emmer & Brooks, P.C., which has offices in Massachusetts and New Hampshire, has seen circumstances where lack of familiarity with the governing documents breeds mistrust. “Human nature is such that the owners who are not on their association board often feel an imperative to scrutinize the board, and to assume that anything they haven’t been informed of is a nefarious plan in the making,” he says. “In light of that, unit owners [who are] familiar with provisions of the documents having to do with open meetings, the availability of records, when financials are supposed to be distributed, etc. will be less inclined to second-guess why the board hasn’t called a meeting or distributed a certain document to the membership.” Or if their board really isn’t fulfilling a requirement or is withholding information to which members are entitled, a literate unit owner or shareholder can point to the provision requiring it. (Mic drop optional.)
Promoting Document Literacy
Given how useful and important governing-document literacy is, why is it so rare? And how can it be improved?
One problem is the way many governing documents are drafted. According to Ringston, “Documents that were written in the ’70s and ’80s [or earlier] are in legalese,” making them hard to read and understand for most owners or shareholders without a Juris Doctorate. Additionally, she continues, “there are discrepancies that can arise, either because of poor drafting or because an amendment was made or a provision was inserted without thinking about the full impact on the building.” When an association or cooperative—or an individual unit owner or shareholder—needs to pay an attorney to translate documents for them, the likelihood of widespread literacy is slim.
But, in a Catch-22 particular to cooperative and community association living, given the high threshold of participation and affirmative votes needed to make changes to these documents—particularly the foundational bylaws and master deeds or proprietary leases—much of the problematic, obscure, or confusing language is hard, if not impossible, to amend. So absent making the language more accessible, can anything else be done to encourage governing document literacy?
“The best boards,” says Daddario, “familiarize themselves with the constituent documents and encourage owners to do the same, … [and] they operate with as much transparency as possible for the community. Transparency is achieved through open meetings, newsletters, memos to the community, and technologies such as an association website.”
Ringston echoes the call to transparency and communication regarding governing documents. She says, “I do think, as silly as it sounds, that talking about it and referencing specific provisions is the way that the communities can handle it. I also think that the attorneys that represent buyers and sellers in condos and co-ops have an obligation to give their clients a copy of those documents and to explain what ownership in a condo or a co-op means, make sure that they’re familiar with them and have a copy with them. Does that mean that they have to sit down and review every single provision? No, but you do want to take the time, particularly if you have a first-time buyer or someone that’s coming in from an area where they haven’t lived in a common interest community, and explain what that really looks like.”
What might ultimately be needed to inspire and encourage document literacy among co-op, condo, and HOA homeowners is a broader cultural shift and an emphasis on the community aspect of a common-interest community. Giantomasi recommends that all homeowners opt to “limit or change certain behaviors as is necessary in order to coexist and to maintain a sense of congeniality and community between neighbors.” This includes reinforcing the responsibility that comes with homeownership in a cooperative, condominium, or community association.
“A large number of disputes that we see have to do with things that could have been resolved by reading the governing documents before one takes action,” says Ringston. “If people familiarize themselves with those provisions, they could save themselves a big headache. Just having a general familiarity with your documents can make everyone’s—board and owners—experience much smoother.
“Just a little education and a little due diligence go a long way,” she concludes.
Darcey Gerstein is Associate Editor and a Staff Writer for New England Condominium.