A RULE IS A RULE OR IS IT?

One of the Board’s important duties is the enactment and enforcement of Rules and Regulations for the benefit of the community. Almost all condominium association’s governing documents, the Master Deed, Declaration of Trust and/or By-Laws give the Board the power to enact Rules and Regulations primarily to govern what may or may not happen in the common areas, without the need for Unit Owner consent/vote.With such a broad power some members of the Board may think that the Board may enact just about any Rule and the residents of the community will have to comply. While other Boards may with good intentions enact what they believe to be a reasonable Rule or a Rule that is merely looking out for the safety of others, and yet find themselves faced with a legal challenge by a resident.So when is a Rule, not a Rule? In other words when is a Rule possibly not enforceable and what types of Rules can land the Board facing potential legal claims?RESTRICTIONS ON A UNIT: One of the common mistakes attorneys that represent associations come across are Rules designed to impose restrictions on the Unit. The Courts in Massachusetts have been consistent in ruling that “restrictions relating to the use of a condominium unit as distinguished from those relating to use of the common areas and facilities must be contained in either the by-laws or master deed to be enforceable under M.G.L.c. 183A.” Noble v. Murphy, 34 Mass.App.Ct. 452, 454 n. 4, 612 N.E.2d 266 (1993) (emphasis in original). See also Granby Heights Association, Inc. v. Dean, 38 Mass.App.Ct. 266, 268, 647 N.E.2d 75 (1995).These decisions have arisen primarily around when Boards have attempted to prohibit pets from being maintained inside the Units by enacting a Rule. Such Rules have been found unenforceable, unless the condominium governing documents, the Master Deed, Trust and/or By-Laws already prohibit pets inside the Units.Likewise other Rules attempting to impose restrictions on the Unit that do not already exist in the Master Deed, Trust and By-Laws would also be unenforceable. A good example would be a Rule that prohibits the leasing of the Unit without obtaining prior permission of the Board or even all together, when the Master Deed already allows leasing of the Unit, without limitations.So the first lesson learned when enacting Rules is in most cases they may not impose a restriction on what occurs inside the Unit. Almost 100% of the time if the Board is attempting to impose a restriction on what occurs inside the Unit, it must do so by proposing an Amendment to either the Master Deed, Trust and/or By-Laws, which Amendment will require a certain amount of Unit Owner approval, as dictated by the Association’s document’s amendment provisions.RULES THAT CONFLICT WITH THE MASTER DEED, TRUST AND/OR BY-LAWS:Another area where a Rule will not be enforceable is if it conflicts with provisions in the Master Deed, Trust and/or By-Laws. One of the most common examples our office sees is when the Board enacts a Rule describing a fine schedule as an enforcement tool, only to find out that the Master Deed, Trust and/or By-Laws already imposes a cap on the amount of any fine that may be imposed.The cap could be very low such as $5.00 given that the some documents may be thirty-five to forty or more years old. While a Rule establishing a fine schedule that imposes differing amounts depending on the nature of the offense or the number of offenses may be reasonable, in an instance where there is already a cap on fines in the documents, the Board would first have to propose an Amendment to the documents eliminating the cap and allowing the Board to impose a fine schedule by enacting a Rule.  Again, such an Amendment will require a certain percentage of Unit Owner approval as dictated in the documents.RULES THAT CONFLICT WITH EXISTING LAWS:So one may think as long as we stick to enacting Rules that govern or prohibit certain things in the common areas and not necessarily inside the Units, then we should be o.k. After all most documents state that the Board is in charge of the common areas, “as if it were the sole owner.”Not so fast. Sometimes, Rules may conflict with existing laws that the Board may not be aware of.Common examples are Rules that prohibit the installation of antennas and/or satellite dishes on the common area property, including but not limited to limited/exclusive use common areas. Most Rules we see attempt to prohibit the installation of antennas and/or dishes on decks, balconies and patios which many documents described as exclusive use common areas.While the Board may think they have the right to enact such a Rule based upon maintaining what is commonly referred to as the architectural integrity of the exterior of the buildings, (i.e. the uniform appearance) such Rules may conflict with the Over-the-Air Reception Devices Rule (“OTARD”) enforced by the Federal Communications Commission which prohibits the wholesale denial to individuals who place antennas that meet size limitations on the property they own or rent that is “within their exclusive use or control.”As such a Rule that simply prohibits the installation of antennas and/or satellite dishes that meet established criteria set forth in the OTARD rules anywhere on the common area could be unenforceable, as the OTARD rules allow the installation of such devices on exclusive use common areas, commonly defined in association’s documents, as decks, patios, balconies and in some documents areas surrounding or adjacent to the Unit. Having seen many Rules that have violated the OTARD regulations MEEB in order to assist Boards has developed a Satellite Resolution that we offer at a flat fee.Another common example of a Rule that would be unenforceable because it conflicts with existing law would be a Rule prohibiting the display of the American flag in the common areas.In 2005, the Freedom to Display the American Flag Act was passed which permits Owners in communities, such as condominium associations to fly the flag despite restrictions or Rules that may prohibit it.While Boards may enact Rules that regulate the time, place and manner of displaying the flag, they must be reasonable and “necessary to protect a substantial interest of the condominium association.” Boards may not prohibit all displays of the American flag in the common areas.  MEEB has also developed a Flag Resolution to aid Boards wanting to impose restrictions that comply with the Flag Act.  Said Resolution is also available for a flat fee.RULES THAT ARE DISCRIMINATORY ON THEIR FACE OR IN THEIR APPLICATION:Often times a Board will enact a Rule that appears to be within its power, but that has a discriminatory aspect to it that could land the Board in hot water. For example a common Rule designed to ensure that the exterior of the property (i.e. the common areas are kept neat and tidy) may be drafted to say:  “The storing of items such as, but not limited to play pens, baby carriages, toys, bicycles and play pools under the decks are not allowed.”  This would be an example of a Rule that has been found discriminatory on its face, as it appears to only apply to families with children.While some Rules are discriminatory on their face, others have been found by the Courts to be discriminatory in their application. For example, the Board having nothing but good intentions may enact a Rule designed in their belief to help ensure the safety of some of its residents.Such a Rule may say something like: “Individuals under the age of eighteen must be accompanied by an adult when swimming in the pool.”One Court finding such a Rule discriminatory in its application explained it by stating: “There is nothing magical about the age of 18 or 14,” the court noted. While concerns about the safety of children riding bikes and swimming are legitimate, the court agreed, they would be “better-served with a proficiency requirement” applied to everyone. After all a child, age ten may be a better swimmer than an accompanying adult.CONCLUSION:The lesson here is there is more to consider when enacting a Rule than one may imagine and it is area where good intentions may lead to unintended results or unenforceable Rules. These are just a few examples.  Boards should consider having an attorney at MEEB review the proposed Rules before putting them into place to avoid common pitfalls.If you would like to discuss this article or the adoption of one of the mentioned Resolutions please contact Pamela Jonah at pjonah@meeb.com