In buying into a condominium community and its lifestyle, the prospective owner signs a contract, agreeing to accept and uphold the community’s rules and regulations—and essentially waiving certain rights.
In doing so, this buyer may feel that he or she is entering an exclusive world that can dictate—by contractual consent—a particular [and desirable] living environment. In much the way a country club or even a neighborhood social club is considered private, and its members free to include or exclude whomever they want, a condominium community is also a private enclave—or is it?
Residential community unit owners enter into contracts that are private agreements, made strictly between consenting parties, but legal experts will point out that “housing” is the main difference between condominium associations and other, private organizations or clubs. As such, the federal or state Fair Housing Act and related statutes regarding discrimination are routinely applied, and can override regulations in condo docs.
For instance, the freedom of speech guaranteed in the U.S. Constitution does not apply in many condominium communities. This is because while the constitution prohibits government at all levels—local, state and federal—from impinging on the First Amendment rights of citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.
But a court may decide otherwise. In a recent case, a condo board banned a unit owner from placing a political sign inside his window. The owner brought suit, and the state Supreme Court in New Jersey agreed with the plaintiff, concluding that his right to free speech—specifically, political free speech—trumped the property rights of the community association.
“In this case,” states Stephen Marcus, a principal in the law firm of Marcus, Errico, Emmer & Brooks in Braintree, Massachusetts, “the New Jersey Constitution is tougher than the U.S. one.” He points out a few details about this case that could be warning signs for association boards. For instance, the court questioned how a person’s fundamental rights can be waived during a condominium purchase, when the waiver language is buried in a single-spaced document with dozens of pages. Marcus suggests that boards set restrictions that relate to the goals of the association, such as protecting the safety of residents or maintaining architectural integrity of the community.
If boards can justify the reasoning behind their regulations, they will fare better if challenged. “Just because something is allowed by law doesn’t mean a condo doc can’t prohibit it,” says Marcus. With medical marijuana use opening up with recent changes in the law, he notes, “Association boards should be able to treat marijuana smoking like tobacco smoking,” and apply any of the same rules or limits.
So condo communities really can control what goes on within its property bounds? Pretty much, contends Marcus, but with some major exceptions. “Federal laws regarding disability can trump condo laws. Plus, the Federal Communications Commission (FCC) came out with a rule a few years ago allowing residents with come conditions, to install a satellite dish or antenna” on decks or outdoor areas under their exclusive control, “and overriding condo regs” that would prohibit exterior additions.
“We had one association insisting that they didn’t allow cats,” Marcus continues, “even though ‘emotional support animals’ may have to be provided for a unit owner. We told the board to go through the steps and ask for a better explanation in writing…have the owner identify that there is truly a need for a pet; request a doctor’s note as to why a pet is necessary. Generally, the association is just unaware that their rule may be illegal. You just can’t ignore the law, although you can put conditions on how ‘reasonable accommodations’ are met…. the board can set parameters.
“Keep in mind,” he continues, “that board members are volunteers and need us [as legal counsel] to inform them when there are changes in the law…. and it might impact their regulations. You want to keep associations out of a suit, especially one they cannot win. Under the Fair Housing Amendments Act, some of these laws have fines or can result in large judgments.”
Marcus says his firm encourages boards to make any restrictions on expression consistent (restrict all signs, not just some of them) and content-neutral-focus on the method of expression, not on the ideas expressed. Restrictions targeting the “time, place and manner” of expression may be viewed more favorably by the courts than absolute bans.
From Age Restrictions to Religious Practices
Attorney Mark Rosen, who is with the law firm of Goodman, Shapiro & Lombardi, LLC in Dedham, Massachusetts, cited a recent case [Old Colony Village Condominium in Orleans, Mass., vs. Steven Preu] in which the unit owner was fined for “acting out” and expressing himself. As the case has played out, it has illustrated how judges might deal with possible infringement on a person’s freedom of expression in the context of a residential community.
Freedom of expression may be one legal issue that boards must face; the other side of the coin for boards to consider is the privacy of its residents. “We had a case,” states Rosen, “where a candidate for a board position wanted the names and addresses of all unit owners. Even though it’s public record, we advised the association not to disclose this information because unit owners haven’t provided permission. The association maintains these records for safety and administration purposes but the board should be careful about disseminating information about unit owners.” There may be privacy laws to consider.
Rosen points out some of the complications that can arise with the few condo restrictions that are exempt from laws, such as “senior” housing that is age-restricted. “The community may limit the owner on the deed to be over-55. What if a ten-year-old comes to live with Grandpa? Does the condo bylaw state no one under age 55 may live there, even temporarily? Some condo docs do spell out time frames for young visitors. Then, there’s the exception that may be necessary if the older person needs health care support of a younger resident.” If such a need were qualified by a health care professional, the “disability” would most likely override the condo’s age restrictions.
Another aspect of legal rights that trump condo bylaws is with religious practices. Rosen states, “You may have an ‘architectural integrity’ law in your condo rules and regs that prohibits signs… even those placed inside the glass of your windows. What we run across more often is residents putting things on the outside. In one case, a Jewish unit owner had installed a Mezuzah on the entry door and was told that it was prohibited by the condo rules. He went to court and eventually won.” The Mezuzah is a small case containing a hand-written scroll of parchment (called a klaf) with passages from Deuteronomy written in Hebrew. It’s typically placed on the right side of the doorpost.
Rosen contends, “religious practice may trump the condo bylaws, but the answer depends on where a religious artifact is installed… on the unit or in a common area.
Assessing Legitimate Needs
As an attorney in the “Vacation State,” Joseph Carleton, Jr., with an office in Wells, Maine, has experience with a wide range of residential communities, from two units to several hundred, and everything from ski chalets to seaside “seasonal cottage complexes.”
Carleton cites the difficulty in issues related to “limited common elements” such as decks. “We have a lot of disputes about the use of decks and what you can do on them, as the unit owner. The association board still has power over that deck” in most cases, and state or local laws dictate what residents can do in many cases. “Some people want grills out on their decks, and some condo docs may contain rules about using grills but local or state fire codes would take precedence.”
“We saw a case with a luxury building with decks facing the harbor, and one unit owner wanted to install a storage locker on his deck,” he adds. “This was a case where the association board had the power to prohibit it.” Sometimes general laws or building and fire codes are applied where condo rules allow a certain practice—or are silent.
“With a request is made that requires construction,” he continues, “the most common thing we see is a resident who wants ramp access to his or her unit. In such a case, the owner pays for the ramp… even though it may be built on common elements such as steps or a deck.”
Most disagreements ultimately stem from accommodation of a resident’s disability, with “disability” defined under state or federal statutes. “Just the other day,” says Carleton, “I got a call about someone with a service dog at a condo-motel. The federal Fair Housing Act says you cannot be denied accommodation because of a disability, and the Maine Fair Housing Law has a definition that’s even broader in scope than the federal statute. A resident must document that a service animal is necessary, and the disability falls within the state or federal definition, then it trumps the condo docs.”
Carleton describes a unit owner who insisted on installing an awning to block the sun on her deck, claiming that it was a health issue and she had a sensitivity to sunlight—backed up by a medical opinion. The condo docs allowed “improvements” to the decks, but only with board approval. “In situations like this, unit owners can go to the Maine Human Rights Commission [as a first step],” he says. “In another case, a woman claiming to have trouble walking wanted a parking space assigned to her in the general parking area, which would be closer to her door. The trustees gave her a form to fill out, but she never returned it.”
This is an example of a method any association can use to narrow down legitimate requests, Carleton notes.
“I suggest that association boards use this process to keep themselves out of trouble. It’s the use of a ‘Reasonable Accommodations Request Form’ and it must be completed by the resident’s health care provider. It states that the trustees or directors must consider the request if the person meets specific criteria. First, that the person is disabled according to a federal Fair Housing Act definition. Secondly, in a professional opinion, does this person need the accommodation in order to enjoy their home as much as someone without that particular disability? A third criterion is to ask if anything else can be done that would avoid having to break the rules of the community association.”
“The resident must sign the request form,” he continues, “allowing the health care professional to certify that the disability or condition is covered by laws” that would override the condo docs. The form need not describe the exact health problem, only that it is a qualifying condition under the legal definition.
Carleton adds that, “Over the years, we see instances where request forms were given out but never returned… Sometimes people request things like [closer] parking spaces and they may or may not really need it.” The official nature of the request form can help board members focus on unit owners who have actual disabilities, real needs and a legal right to address those needs, even if it overrides the community’s rules.
Marie Auger is a freelance writer and a frequent contributor to New England Condominium.