Oftentimes co-op, condo and HOA boards are faced with difficult choices when it comes to enforcing their community’s rules and regulations. Board service isn’t an easy thing, and while board members want to be understanding of their fellow residents, they are both legally and morally obligated to enforce board decisions as needed. One possible option in dealing with serious infractions is to deny access to community amenities – or even to property access.

Where is the Precedent?

Infractions by co-op, condo or HOA members generally fall into two categories: rules violations and nonpayment of assessments and fees. The question is whether a board of directors has the option to penalize residents by restricting access to and use of amenities as punishment for infractions and nonpayment to begin with. Frank Flynn, a co-op and condo attorney and owner of the Boston-based Flynn Law Group says, “With regards to condos, co-ops and HOAs located in Massachusetts, it’s a flat-out no. I’ve seen [these types of penalties] before in governing documents, but you simply cannot do this. In Massachusetts, condos have master deeds and trust documents that contain bylaws. Even if [penalties] are in the bylaws, we counsel our clients not to do it.”

Jeffrey C. Turk, an attorney in Massachusetts and a senior partner in the law firm of Turk & Quijano, concurs. His firm represents co-op and condominium boards and associations as well as HOAs, and he says that in Massachusetts, barring a non-paying or rule-breaking resident from accessing an amenity or other common area is not the path of choice for association actions. 

“There are not a lot of cases in the condo arena where this has happened, and it’s not something I would recommend that associations do. The reason for that is because associations already have very strong powers to deal with this kind of problem through foreclosure.” Turk advises boards to “proceed with a foreclosure, rather than messing around with potential liability by removing access to amenities. As far as whether an association could deny access, the Massachusetts condominium statute does say that an owner’s use of their unit is subject to compliance with the bylaws,” so if they are in violation of the bylaws the board might be justified in locking them out of their actual unit. However, Turk stresses, “We use this provision more commonly in situations of behavioral enforcement problems. Generally, we get an injunction barring the offender from their unit based on their behavior.”

Understanding Terms, Conditions and Distinctions

To delve a bit further into the do’s and don’ts of this legal tightrope, both Turk and Flynn caution that exclusion through manipulation of such things as electronic key systems would be considered a ‘self-help eviction.’ According to the Legal Dictionary section of freedictionary.com, “A self-help eviction occurs when a landlord retakes possession of a property without using the eviction process. The use of self-help may amount to landlord harassment. Nearly every state prohibits a landlord from using self-help to evict a tenant.” 

As mentioned previously, Flynn says that he has seen associations attempt to put access denial clauses into their bylaws. But again, he views it as a bad move. “I think it’s a guaranteed way to get sued. Invariably, if there is a suit, it will be filed as a discrimination case. The offending party will say, ‘I understand I haven’t paid my assessment, but the real reason I am being denied access to the tennis courts or pool etc., is because of who I am, a man, woman, old, black, white, Asian, etc. Therefore I always counsel a condo association not to lock someone out for non-payment, because they’re essentially trying to collect a debt, and there is a process in place for that. We don’t need to add to that process. It can cause all kinds of possible claims. Any association considering adding access-related penalties to their bylaws should consult their attorney – and will almost certainly be counseled against it.” 

Flynn mentions one case in a suburb of Boston where a large condominium that included a golf course wanted to bar unit owners from the golf course if they hadn’t paid their fees and assessments. The policy was clearly stated in their governing documents. The initial court ruling was in favor of the association, but ultimately the case was settled out of court. 

Turk also points out that in Massachusetts, there are important distinctions between condominium and co-op buildings when it comes to this issue. “Co-ops, which are uncommon in Massachusetts, are viewed by the courts as a tenancy, even though the cooperators are owners of the property. Most courts view this as a landlord-tenant relationship. Therefore, if you were to try to remove a co-op shareholder without using summary process and the eviction proceeding, you could get in a lot of trouble. As a landlord-tenant relationship, you cannot remove use of an amenity form an occupant. In the co-op world this type of action would be considered a self-help eviction.”

Legal Standing

Flynn points out that the Massachusetts condominium statutes provide a different approach to conflicts created by residents who continuously break or flout house rules. “In this case, what should happen is that the board should contact their attorney and send them information on that has happened. The attorney will review it and devise a strategy to handle the situation based on how severe the infraction is. If the resident is in fact in violation of the rules in, say, the fitness room or the pool, you would first send them a notice. If the behavior continues, there would be a second notice. If that notice went unheeded, the association would go to court through their attorney and get an injunction against the unit owner. That’s the best process to use.”

Turk agrees, adding that “if rules are to be enforceable, they must be explicit and in the governing documents. If it’s in the governing documents, the unit owner has agreed to them and it’s more enforceable. I don’t need to mess around with someone who isn’t paying their fees. I can just foreclose, and quickly. We are a super-lien state,” which also puts the recalcitrant unit owner on the hook for everyone’s legal fees as well. 

Flynn and Turk both stress that before taking any extreme action it’s always good to send out a warning letter and give the resident an opportunity to correct the problem Co-ops, condominiums and HOAs are communities and the residents have to live together. It’s always better not to create situations where bad feeling lingers and can poison the environment.

Different Approaches

Of interest to note is how this issue is handled in different parts of the country. Some states have statutes permitting regulation and suspension of privileges, while other states set standards through case law, and still others are silent on the issue. In Massachusetts, the governing principle seems to be whether the clause is included in the original condominium documents. The Florida statute specifically indicates what can be curtailed or suspended; the Illinois statute specifically states what is prohibited; New York has no statute, leaving boards to rely on their operating documents and case law, and New Jersey requires a board to partake in mediation before placing restrictions. 

“I haven’t seen a board go against good legal advice on this subject,” says Flynn. “In Massachusetts it’s understood that you just don’t bar residents from amenities. If it happened and I represented the unit owner, I would sue and bring an injunction action against the condominium association.” Turk adds, “Our statute specifically says that a unit owner’s use of the property and use of their unit is subject to compliance with the bylaws.” Don’t bother with difficult rules in your bylaws. “Go to court and get a court order barring the unit owner from the property or using the amenities. We do it all the time.” Massachusetts provides remedies not readily found in other states.

Ultimately, access – or the revocation of it – is not a cudgel for boards to wield against problematic or non-paying residents, but it is a useful policy in certain situations toward certain ends. Determining what those are, and the extent of your own board’s ability to use it is a process best handled with the help of your building or association’s legal counsel. Finally, it is important for every policy/rule to be consistent, transparent and fair, applied uniformly and connected to a purpose of the association. And remember, don’t pass policies you can’t uphold in court.                              

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