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.”