Published on: February 5, 2001
On a number of occasions, governing documents for multiple condominiums with overriding umbrella associations have crossed my desk. More often than not these “grouped condominium” arrangements are premised upon a Declaration of Covenants, Easements and Restrictions. More often than not such documents have no termination date, or if they do, no provision for their extension. Others which have a termination date contain various provisions for what amounts to automatic extensions, unless there are sufficient numbers of objections. Unfortunately, it is likely that all of these documents are defective.
In Massachusetts there is what is commonly referred to as an “anti-restriction” statute. The law is supposed to favor the free use of land. In furtherance of this concept the Legislature enacted a law which, as here relevant, prohibits any restriction on the use of land which exceeds thirty years unless specific provisions are made, and followed, for extensions. The majority of documents I have seen which have extension provisions do not comport with this law.
There is some question among community association attorneys whether this law applies to the type of situation facing grouped condominiums. Certainly, when it was passed condominiums were not taken into consideration, as the Condominium Act had not even been enacted. Further, reciprocal easements do not fall under the anti-restriction statute’s purview. However, restrictions on use could be seen as covered. In a homeowner’s association, as opposed to a condominium, these are causes for substantial concern.
Many associations were created in the 1980’s. Thus, as we approach the Millennium, it is appropriate to begin to address the issue. Associations with defective term provisions need to begin to develop a strategy to obtain the consent of all owners to a “renewal” of the Declaration of Covenants, Easements and Restrictions. Effectively, absent legislative intervention, each lot will have to agree to renew the restrictions. Thus, some hard work will be in order. All owners within the community will have to be convinced of the importance of the restrictions and their connection to property values. To muster support, a good start would be to form a committee to review the Declaration of Covenants, Easements and Restrictions and seek input from the community as to whether, and what, changes are desired. By involving the community early on, hopefully a consensus can be reached which will allow all owners to sign on for the renewal.
Fortunately for individual condominiums, this issue presents no problem. On the other hand, some homeowners associations face a significant issue, and grouped condominiums with umbrella associations premised upon a Declaration of Covenants, Easements and Restrictions need likewise to be concerned. Those in such situations should consult the attorneys and begin the task of addressing this issue now, rather than at the eleventh hour.