Many who purchase homes in a condominium are unaware that the term "king of the castle" or the concept of freedom to do whatever they wish in their own home does not apply to condominium living. Unlike the owner of a single family home (in the back woods with no neighbors), unit owners are often subject to restrictions as to how they can use their units. Those restrictions are enforceable through fines, litigation, and other penalties.

Massachusetts' highest court has quoted the Florida case of Hidden Harbour Estates, Inc., v. Norman, which stated, "Those who live in condominiums must be willing to give up a certain degree of personal choice in order to promote the welfare of the majority of owners." The Court went on to say, "Against the outside world, a condominium unit is the owner's castle, but the fellow unit owners in the condominium have a legitimate interest as to certain aspects as to what goes on beyond the moat and within the gates. Each unit owner must give up a certain degree of freedom of choice which you might otherwise enjoy in separate, privately owned property." (The Massachusetts cases of Woodvale Condominium Trust v. Scheff and Franklin v. Spadafora are examples of Massachusetts cases upholding such a concept.)

Lack of Education

Unfortunately, many people who purchase condominium units fail to educate themselves as to the "nature of the beast" that they are purchasing. Many attorneys who represent purchasers of condominium units are not asked by their clients to review the condominium documents and the restrictions that are contained in those documents. Even more regrettably, many attorneys who are unfamiliar with condominiums do not even suggest to them that they do so. Thus, the purchasers are not properly advised as to what they are getting into. In my opinion, this does a disservice to clients.

For example, imagine the dismay of people who own dogs only to find out that they cannot move into their new home with the pet. That pet may be as precious to them as their own children. What are they to do? There is an established principle of law that says that they know or should have known of the restriction on the pet before they purchased their unit because everyone is on constructive notice of all documents on record at the Registry of Deeds. Restrictions on use of the unit must be either in the Master Deed or the By-Laws. In fact, if there is a restriction in the documents on record that has been recorded at the Registry of Deeds when a unit is purchased, that restriction may very well be upheld even if it is unreasonable. The legal reasoning is that people have the right to opt out of the scheme set forth in the recorded documents by not purchasing, or, if they purchase, it is presumed they intend to be bound by whatever is in the documents (even if they really have no actual knowledge of the recorded restriction).

Additional Restrictions Can Be Problematic

A bigger issue arises when unit owners purchase a unit and there is no restriction on certain things that they do within the unit. Subsequently the members of the association amend the governing document to restrict a certain use within the units. For example, pets were permitted within a unit but are subsequently prohibited through a vote of the unit owners. Adding that restriction to the document, a question could arise as to whether that restriction is enforceable. In Massachusetts cases such as Noble v. Murphy, our high courts have held that an amendment to the condominium documents restricting use could be upheld if that amendment is not unreasonable. In fact, the court found in the Noble case that a certain small degree of unreasonableness could be contained within the restriction. In a recent Florida case, where an argument was made by unit owners that such an amended restriction might violate property rights, the Florida Supreme Court stated that when somebody purchases a condominium unit and the language of the documents permits an amendment, all purchasers are on notice that changes might be made to the documents which were not there before and that through the amendment process already in the documents, by purchasing units they accept that possibility. As to the case of the dog, the court went on to say that the right to have a dog is not a property right; rather it is merely a privilege which can be revoked.

In the Massachusetts case of Franklin v. Spadafora, a unit owner owned two units and was about to purchase additional units and, perhaps, gain control of the condominium. The other unit owners passed an amendment restricting the number of units that any one person or entity could own. (Prior to that amendment, there was no prohibition on the number of units that anyone could own in that condominium.) The Massachusetts court upheld the amendment restricting the number of units that individuals could purchase.

Quality of Life Issues

There are numerous issues affecting the quality of life in one's unit that have been raised. For example, can a unit owner who has been smoking in his own unit for many years be forced by either the condominium association or a neighbor who claims to be adversely affected by the second-hand smoke to stop all smoking in the unit? Can a unit owner who cooks with pungent spices which are customary in the country of their birth be forced to cease using those spices when other unit owners claim to be adversely affected by the cooking odors? Can a person who suffers from insomnia and walks up and down on hardwood floors all night disturbing the neighbors below be prohibited from walking on those hardwood floors? Assuming that someone has the right to seek to restrict such activities, is the right held by the condominium board or by the unit owners who claim to be affected?

The answer to those questions depends upon many factors. The first question to be asked is whether the proposed restriction serves a legitimate condominium objective. Not every activity can be restricted. It is hard to conceive of a court upholding an amendment to the condominium documents which prohibits persons from getting out of bed before a certain hour in the morning. On the other hand, it would be easy to see a court upholding a restriction prohibiting the maintenance of explosive devices in a unit. The second factor to consider is whether the restriction is reasonable. It would seem to me that a restriction preventing unit owners from using imitation flowers as decoration in their units would be deemed to be unreasonable by a court and not upheld.

Common Property is Everybody's

Certain unit owners purchase condominium units in small (1-5 unit condominiums) with the mistaken impression that they are buying an entity similar to a duplex house wherein they would have the right to do what they want, in "their yard," on "their roof," or any other space that they consider to be "theirs." They do not understand that everybody owns a portion of the yard, the roof, the siding, etc., in common with everyone else and that, therefore, the yard, the roof, etc., belong to everyone.

Within the context of these small associations, I have heard of instances where a unit owner has moved into a small condominium and re-roofed the portion of the roof above his unit at his own expense without getting the permission of the other owner or owners; where a unit owner fenced in the area behind her unit as though it was her own yard; where a unit owner decided to insure his half of the building but refused to pay for common area insurance, leaving to the other owner to pay for his or her half of the building's insurance. While these might be appropriate in a true duplex or two-family home, they are all unlawful and improper acts in a condominium situation.

No Kings or Queens

If there is anyone who has not yet guessed at the point behind this article, it is that in a condominium situation there is no "king of the castle." There is no owner who can do whatever he or she wants inside their unit if it will have a negative impact on the other owners or their interest in the common areas and facilities. If you are thinking of purchasing a condominium unit, make certain that your lawyer tells you what you are getting into. If you cannot live subject to rules made by others, you should not buy into a condominium. And if you feel that way but already live in a condominium, you should seriously consider moving. You do not belong there and will only make yourself (and potentially others) unhappy.

On the other hand, if, knowing what your rights and responsibilities are, you still decide to live in a condominium unit and you can accept certain restrictions, I can assure you based on personal experience, that for you, as for me, condominium living can be delightful.