Resident Rights Knowing Them, Upholding Them

Resident Rights

To paraphrase the Declaration of Independence, all men and women are created equal with certain inalienable rights, including life, liberty, and the pursuit of happiness.  That may not be the case if you live in a condominium, co-op, or HOA, however.  Unlike a private home, living in a ‘common interest community’ represents a commitment to cooperative living—and along with that commitment come rules and regulations that just don’t come up in a single-family setting.  For example,  if you own a free-standing, detached house and have a disagreement with a landscaper, you can feel free to place a large sign on your front lawn that warns your neighbors not to do business with him or her. But that won’t fly in an HOA.

Owners’ Rights vs. Association Rights

According to Ellen Shapiro, a condominium association attorney with Goodman, Shapiro & Lombardi, which has offices in Massachusetts, New Hampshire, and Rhode Island: “Within the confines of their four walls, [a unit owner’s] home is their castle.  That being said, they have to be aware that unfettered rights which they have, can possibly be fettered at some point in the future because condominium documents are subject to change and amendment. You start out with the premise that their home is their castle, the same as in a single-family home.”

Further, Howard Goldman, an attorney specializing in association law at Goldman & Pease, located in Needham, Massachusetts, points out that “a resident has the right and expectation to be treated fairly and professionally by the trustees and/or the management, and to have reasonable inquiries responded to in a timely manner. This is to set the table so as not to create a situation where the unit owners are the bad guys.  That’s not a good dynamic.”

From a practical point of view, Shapiro explains that condominium owners have the following rights vis-a-vis the association.  “The property will be properly maintained, things such as exterior maintenance, insurance will be paid, grass will be mowed and snow will be plowed, and the roof won’t leak, things of that nature.  Everything that is external to their unit will be taken care of and addressed so as not to damage their unit.”

In Massachusetts, each condominium association has a master deed, a declaration of trust, bylaws and rules and regulations. “A unit owner,” says Goldman, “is subject to all these documents. Regulations can be amended by the trustees only by majority vote. The condominium documents need to be amended by both trustee and member approval.” 

Of course, voting is the primary right and responsibility of the unit owner. “Voting,” says Goldman, “is based upon a percentage interest. Unit owners vote at annual meetings for the trustees. They also participate in amendments to their declarations of trust and the master deed.  That often requires a supermajority of votes.”  A supermajority of votes is often required when condominium associations are dealing with alterations of property interests. “For instance,” says Goldman, “a smoking ban. It’s an impact on property and personal liberty.”

What About the First Amendment?

Condominiums and HOAs are controlled by their governing documents; their bylaws and declarations of condominium, which are in turn governed by state statutes. According to the U.S. Constitution, First Amendment rights are guaranteed with respect to ‘state actions.’  In other words, the state may not deprive you of your constitutional right to free speech, but condo and HOA boards and associations are commercial entities that are not subject to those regulations, except in cases of the violation of laws, such as the Fair Housing Act or consumer protection legislation.  

That of course does not mean that board and associations can do whatever they want.

“Buying into a condo, one needs to recognize that we have to make compromises,” says Goldman, “because we are buying into an existing program with rules and regulations.  It could be that condominium documents might restrict certain rights.”

Shapiro cites a striking example of this distinction.  “If there is something in the governing documents [of an association] – a proper restriction in the master deed, for instance – stating that there cannot be any guns in the community. Leaving enforceability aside for the moment, it’s a perfect restriction; [gun ownership] is a constitutional right that you have – but do you waive it by buying into a community?  I take the position that a community could absolutely prohibit gun ownership, because there is no ‘state’ action involved.  You’re buying unto a private community.  Therefore, they can prohibit it. Now, as to other discriminatory acts that are prohibited by law, rather than things permitted by law, they can prohibit because you’re voluntarily giving them up by buying in.”

Goldman further expands this concept.  “Courts have consistently held that freedom of expression permits people to hang patriotic displays in and around the exterior of their units.  Condos are private property, so the common areas are used for general purposes such as the right to reserve a common room [for a meeting or other personal event].  In a political matter, you should be entitled to the room – but condos generally want to stay away from people protesting.  It’s private property, and typically associations will bar protests. They don’t want to infringe on people’s rights or create nuisances, so political demonstrations and meetings tend to be frowned upon.”

Political Motivations

There is a national debate as to whether freedoms guaranteed by the First Amendment of the U.S. Constitution apply with respect to private land use covenants.  Appellate courts in many states have not yet ruled on prohibitions against political signage, although restrictions against other signage have been upheld.  For example, the New Jersey Supreme Court ruled that HOAs did not have the power or authority to ban all political signs in that state.

As stressed before, constitutionally, First Amendment issues really apply to state actions. The actions of HOA, condo, and co-op boards don’t constitute state actions, so therefore enforcement of a political sign restriction does not violate free speech rights. Commercial speech, like for-sales signs, is treated differently.  Commercial speech is provided more latitude so that HOA regulations limiting signs of all types and their placement have been upheld.

Privacy Concerns

In Massachusetts, says Shapiro, “The condominium statute could be interpreted to permit a board to release private information.”  But despite this, she continues, “There are certain issues where we take the position that you don’t reveal the identity of unit owners whose accounts are in arrears.  You don’t reveal the identity of unit owners who are experiencing financial problems and who may have requested waivers of fines or late fees etc.  With these issues, we tend to respect privacy – not because of the law, but because of common sense and fair dealing.”

Goldman expands on the uniqueness of this situation in Massachusetts law.  “Personal information is covered by a series of different statutes – not necessarily the condominium statute.  Confidential information, both personal and medical, must be maintained in a confidential and secure manner.  Associations do not have the right to release this information to a third party without the unit owner’s permission. These are general protections not unique to condominiums.”  In more practical, everyday terms, Goldman adds that “unit owners are entitled to privacy in their units, but not in common areas.”  In other words, you can walk around naked in your apartment without breaking any rules but you can’t run through the hallways naked.

Right-to-Know, Enforcement, and Appeals

“When they are asked to make a reasonable accommodation or modification because someone is suffering from a disability, boards have a right to request a limited amount of information, particularly when it’s what’s known as an open and obvious disability,” says Shapiro. “If someone walks into the management office and says, ‘I need to have a snake in my apartment,’ and there is a no-pet rule, it doesn’t mean they will get permission,” Shapiro says. 

Shapiro speaks from experience regarding the pet snake. A resident of an association she represented suffered from severe anxiety.  There is a treatment for anxiety called ‘squeeze therapy.’ While squeeze therapy usually involves spending time in a snug, hammock-like device or swaddled in heavy blankets, it’s not unheard of in medical literature for constricting reptiles to be used to apply bodily pressure to the anxiety sufferer, and thereby calm them. The person in Shapiro’s client community claimed he became anxious when attending board meetings in the community’s common area, and needed his pet boa constrictor to wrap itself around his arm to calm him down enough to attend and participate. In this circumstance, the board has the right to request medical evidence of the individual’s condition, and the legitimacy of using the snake as a therapeutic device. “There must be a nexus between the medical condition and the request,” says Shapiro. “That’s the board’s right to know.”

Goldman points out that neighborly relations are important.  “Most documents and associations should have a policy that permits due process through a hearing.  It’s not required, but we do recommend it. Unit owners should have a mechanism to air their complaints.”

In the final analysis, Shapiro says, “Owners can generally challenge a decision of the board by filing a suit. There is no statutory penalty.”  The ultimate power is in the hands of the owners, though. “It’s the power of the vote. If you don’t like the board and their decisions, throw the bums out.”

So, as in all aspects of life, when it comes to your own condo, co-op, or HOA, it’s crucial that you know your rights. They may be more complicated than you think.                                            

AJ Sidransky is a novelist and staff writer for New England Condominium. 

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