Q. One of the board members in our condominium is not an owner of his unit—the deed is in his wife’s name as sole owner. Our condo docs, including the bylaws, seem to me to be clear regarding directors: they must be owner-members as shown on the deed. This situation has gone on for a couple of years, and the explanation I get is that it is okay because they are husband and wife. Is this correct?
—Looking at Legality
A. “In a black and white world, I would say that yes, the individual that posited the question is correct, assuming that the language contained in the bylaws appears as it was written,” says Edmund A. Allcock, managing partner at Allcock Marcus in Braintree, Massachusetts. “I agree that is the correct legal interpretation. However, the condominium and legal world is painted in at least 50 shades of gray.
“I could envision a case where a judge interprets the term ‘owner’ or ‘member’ liberally and equitably. For example, if the person who owns the unit and is married, legally their husband or wife has by virtue of the marriage an equitable ownership interest in the unit. Certainly, if the husband and wife divorce, you can bet that the name on the deed is not going to be outcome determinative. A judge might also inquire about the definition of the term ‘member.’ Are spouses considered members of the association? Are they allowed to use the facilities and amenities? Is being a member more than just a name on the deed? Courts and judges are charged with interpreting the law, and there seems to be a recent trend in condominium cases anyway, of the interpretation leaning toward perceptions of fairness and equity as opposed to strict ‘letter of the law. ‘
“The association may want to take an equitable view as well, knowing full well that oftentimes a husband or wife can just simply amend their deed to put both names on it. There may be times when the association wants to take a hard stance, but if the result is just causing someone to amend their deed, what does that really accomplish?
“There are also times when one spouse may not be on the deed for estate planning purposes. Volunteers are often hard to find; does the association want to preclude them from being involved in governance just because they are limited due to estate planning? When it comes to condominium governance, sometimes the practical trumps the legal - but that is up to each association, just as long as they understand what seems black and white might really be gray.”
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