Q&A: Which Law is the Right Law to Follow?

Q. My condo was formed in 1974 under the old condo law, RSA 479. The new condo law, RSA 356, was passed in 1977. If we update our condo docs now, which law are we required 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. “There is nothing in the New Hampshire Condominium Act that notes if an association is formed under the precursor 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 practical reality is that it would,” says attorney Robert E. Ducharme of Portsmouth, New Hampshire.

“The 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 amendment 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 briefly noting: 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 Hampshire are usually decided on how the provisions of the documents themselves have been applied in any given situation, not by simply looking at the statute. For instance, 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.

“Third, the real question is why an association would want to avoid coming under the guidance of the Condominium Act. There 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 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 association is trying to avoid being bound by an Act meant to help guide all condominium associations, an act of avoidance upon which a court would likely not look kindly. Better to work within a law than to try and find ways around a law.”

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