RULES AND REGULATIONS THAT ARE UNENFORCEABLE

Some Rules and Regulations adopted by the Board of Trustees of a Condominium Association, which are enforced by the Board and followed by the unit owners on a daily basis, may be entirely unenforceable if they were ever brought to the attention of a Judge.  Rules prohibiting pets, smoking, or even unreasonably loud noises within the units may be unenforceable based on a technicality of how those rules were adopted by the Association.  Very common and reasonable rules, like no smoking within a unit, being left unenforceable based on a technicality appears to be counter to what buying into community living is all about, however, the law is very clear on this point.  In order to better explain how the law takes a seemingly illogical application in these instances, we must look at how Rules and Regulations are created and what they are.The Rules and Regulations of a Condominium, as well as all the other governing documents of a Condominium (the Master Deed, the Declaration of Trust, and the By-Laws of the Declaration of Trust) exist because they are expressly allowed for and/or required pursuant to the state's like Massachusetts condominium law statute.  Using the Massachusetts Condominium Statute as an example, M.G.L. c. 183A, Section 8 requires that a Master Deed be recorded, and requires that certain elements, like a description of the land and buildings making up the Condominium, be contained therein.  Section 8 also requires a statement of purposes for which each of the units are intended and "the restrictions, if any, as to their use."  This is the first of many possible restrictions that may be validly imposed upon a unit, and such restrictions commonly concern a residential or commercial use restriction.  This is the first of where we begin to see restrictions that may limit sound, for example, if a unit is restricted to a residential use only.Next we come to Section 10 of M.G.L. c. 183A, which causes the Condominium Association to come into existence, usually as a Condominium Trust, with the recording of a Trust instrument.  Section 10 contains a great deal of requirements and outlines the nature and duties the Association's originating instrument must contain, including a set of By-Laws, which is required by the following section, Section 11, of the Condominium Statute.  It is the intention of the Statute that the By-Laws be a part of the Association's Declaration of Trust document.  The By-Laws commonly appear incorporated into the Declaration of Trust as one document, or expressly done so by reference, legally making one document even if the Declaration of Trust and the By-Laws appear as separate documents.  This is where we see begin to see the reason why a Rule and Regulation prohibiting loud noise, or smoking, may be unenforceable.Section 11 states very clearly that such restrictions respecting the use and maintenance of the units, not already set forth in the Master Deed, designed to prevent unreasonable interference with the use of everyone's unit and the common area, are to be set out in the By-Laws.  This means restrictions as to smoking, pets, and unreasonably loud noises (all very common and sometimes necessary restrictions) should exist in the By-Laws, which are intended to simply be a separate section of the Condominium Trust document.  Going back to the Rules and Regulations, Section 11 distinguishes the By-Laws from a Condominium's Rules and Regulations by stating that the By-Laws are to contain the method of adopting and amending administrative rules and regulations governing the operation and use of the common areas.  This means that By-Laws and Rules and Regulations are two separate things, the later intended to outline restrictions governing the use of common area property only, and therefore cannot restrict what a unit owner can and cannot do in his or her unit, as that is a power reserved to the By-Laws.All too often Rules and Regulations, which legally are only allowed to govern such items as the common area laundry facility, hallways, and the lawn areas and parking lots, contain restrictions that regulate what someone can do in their unit, like defining quiet hours or prohibiting smoking in general.  A prohibition on smoking for a community is great, however, a blanket prohibition in the documents may cause the community to think this applies everywhere, however, if the restriction is contained in the Rules and Regulations it may only apply the common areas, and not restrict smoking within a unit.  If the prohibition were contained within the By-Laws (that are made apart of the Declaration of Trust) the restriction would be valid throughout the Condominium.While all the technicalities of the law may seem counterintuitive, the underlying policy behind them is not.  M.G.L. c. 183A lays out a basic standard for how a community can regulate the conduct of unit owners within the units:  If the restriction is in a document that can only be amended by a vote of the unit owners (Master Deed, Trust document, By-Laws contained in the Trust document) then it can regulate activity within a unit.  If the restriction is in a document that can unilaterally be amended by a majority of the Board of Trustees without the unit owners (Rules and Regulations, and sometimes unincorporated By-Laws that were not created properly) then they only can regulate activity on the common areas.  Since 1975 Massachusetts courts have routinely upheld this basic principle, and the cases almost always concerns pet restrictions (If you didn't know already, unit owners really like to fight about their pets).A case of interest that demonstrates how this legal principle gets applied came from the Massachusetts Appeals Court in 1995, Granby Heights Ass'n, Inc. v. Dean, 38 Mass. App. Ct. 266.  A Rule and Regulation prohibited animals from the common areas, stating "No animal is allowed outside of a unit."  A fairly simple rule that appears to follow the general legal standard for restrictions outlined above, that a Rule and Regulation which restricts animals from the common areas, and does not attempt to regulate what a unit owner can do within their unit, is okay.  The Court rejected the plain reading of the Rule, holding instead that the Rule effectively prohibited unit owners from owning dogs, especially large dogs, which would need to leave the legal confines of the unit and travel across the common areas to be transported off Condominium grounds to conduct their business.  Under the Rule, a fish, or an indoor cat would be okay, however the practical impact of the Rule prohibited dogs from within a Unit.  Central to the Court's analysis in striking down the Rule was that it was not incorporated expressly by reference into the Trust document or the By-Laws, and could be amended unitarily by a majority of the Board without a unit owner vote.  In that case, after one very lengthy and expensive lawsuit, the prohibition against pets in the common areas in this community, in which the unit owners bought into and relied upon, was held unenforceable.And this is only one of several ways in which a Rule and Regulation can be found to be unenforceable.  For example, a Rule and Regulation validity regulating only common areas, prohibiting playing and/or toys in the community's front lawn, could be unenforceable as discriminatory against families, in violation of Federal law.Almost all communities contain common and rational restrictions for items such as noise, smoking, and pets, yet due to a technicality, the restrictions may not be enforceable.  If you know of a deficient restriction, or would like a review of your community's documents, please contact this office for an analysis of the steps necessary to get the restriction valid and enforceable before an unreasonable unit owner exposes this problem for you.