The Age of Reason? Re-teaching Community Association Boards and Their Advisors

Published on: July 30, 2001

Last month, I discussed a curious battle California community associations were waging over proposed legislation which would prohibit community associations from restricting motorcycles from their property. In order to ensure fairness as well as to indicate that unreasonableness is not something reserved solely for California, I will discuss a Florida matter as well as a Massachusetts matter which appear to me to be even more curious than the California motorcycle debate. Because community associations are relatively new, they appear to be in a constant state of evolution and readjustment. Whereas, at one time community associations were considered to be a mixture of a business and of a mini-government, a third prong has developed which is of substantial importance. The third prong is that community associations are communities whereby consensus building among residents as well as developing a sense of community are critical ingredients to a successful association. In the past, the condominium documents were considered to be the Bible and no exemptions could be made under any circumstances for fear of creating a “bad precedent”. Today it appears that community association boards and their professional advisors must learn to “bend the rules” in appropriate circumstances and must learn to eliminate the words “bad precedent” as a basis for enforcing anything.

In Florida, the following story came to me by way of a press clipping sent to me by my father who is a condominium owner and keeps me up to date with newsworthy stories from that state. The incident relates to a condominium association which had a pet weight restriction in its documents. As an aside, I have never seen the logic of such restrictions since there may be many cases where one would prefer to have the docile great dane at their condominium versus the barking chihuahua or the sometimes vicious pitbull terrier.

In any event, Mrs. Greenberg suffered from an incredible sense of honesty. When she filled out the application for the condominium association before her purchase, she listed the weight of her dog as twenty-five (25) pounds. Unfortunately, the restrictions restrict pets to twenty (20) pounds. The day before the sale, the condominium association informed her that her application to join the condominium association had been rejected because of the pet’s weight problem. The mortgage was already in place, plans for moving into the complex were under way and, therefore, Mrs. Greenberg proceeded to purchase the unit. A few days later, Mrs. Greenberg received papers indicating that she and her pet could not live at the complex. If the story ended here, most readers would state that the proposed owner knew the regulations, knew that her application had been rejected and chose to ignore the rejection in any event. Unfortunately, the story, or at least the facts, do not end here.

The pet dog, Beege, is not just a pet for Mrs. Greenberg. Beege is a certified medical assistant which is trained to notify Mrs. Greenberg when the doorbell rings or the telephone rings. The pet assists Mrs. Greenberg because of her hearing disability. It should also be noted that Mrs. Greenberg is a recent widow with a heart condition and that she also undergoes dialysis three times a week. To Mrs. Greenberg, demanding that she get rid of her pet would be the same as demanding that she get rid of her children (except that Beege probably is trained to do more to assist Mrs. Greenberg than most children). Because Beege is vital to Mrs. Greenberg in order to accommodate her disability, even the compassionate folks at the Internal Revenue Service allow Mrs. Greenberg to deduct the costs related to Beege as a medical deduction.

I am pleased to report that after a two year battle, an arbitrator decided that Beege may stay with Mrs. Greenberg at her condominium. Unfortunately for Mrs. Greenberg, she spent nearly $10,000.00 in legal fees and the emotional distress of the process worsened Mrs. Greenberg’s heart decision to the extent that she was required to take additional medication. A major sidenote to this matter is that the board president has a dog that is over thirty (30) pounds in excess of the weight limitation. However, the board president states that he may keep his dog because he made a deal with the developer to allow him to have a dog, while at the same time the board president emphatically states that no exceptions shall be made to the restrictions.

The Federal Fair Housing Amendments Act of 1988 was supposed to send a strong message from Congress that there was an obligation to make reasonable accommodations in housing for persons with disabilities. It is truly unfortunate that one condominium board, believing that its condominium documents are more important than federal legislation, chooses to ignore such legislation or perhaps is not even aware that such legislation exists. One has to wonder where the condominium managers, condominium attorneys and even the arbitrator were when this issue started evolving since it would appear that it was a “no-brainer” which should have been resolved in about two minutes, never mind two years. As an additional aside, I was recently informed of a Massachusetts condominium association with a similar pet weight restriction where the unit owner was fined when his pet dog became pregnant because the dog exceeded the weight limit but that the fines would stop once the dog gave birth because the dog was then in compliance. If dogs had rights for discrimination based on gender, then certainly this female dog would have been marching to the Massachusetts Commission Against Discrimination.

In Massachusetts, it was recently reported in the media that the unit owner at a condominium complex had been fighting with their association over the past three years over the right to fly the American Flag. The husband had served in the war in the Persian Gulf and the parents of the couple were veterans and, therefore, the couple flew the American Flag fifteen (15) days a year. The association at some points allowed the flag to be flown, but when another unit owner made dramatic unauthorized modifications to the common areas, the board adopted a “back to basics” policy whereby, in theory, no modifications would be allowed. Therefore, the unit owners were fined fifteen dollars ($15.00) a day for every day that the American Flag was flown. Unfortunately, the association’s “back to basics” policy was not as strictly enforced as the association thought and, therefore, holiday decorations, such as Christmas wreaths, were allowed during the Christmas season and Easter Bunnies and other religious celebratory decorations were allowed during the year. The couple went to their state representative and legislation was introduced stating that condominium associations could not prohibit the flying of the American Flag. Unfortunately for the condominium board, the proposed legislation made the front page of the Boston Globe as well as being the subject of an editorial of the Boston Herald and the amount of damages to the association from the bad press is unknown. However, prospective condominium purchasers appear to be more sensitive to the issue of not only how much they like their unit or how well the complex is maintained but are also starting to investigate how rigidly restrictions are enforced since some folks simply do not want to reside in a condominium community where no flexibility is permitted.

The good news, I suppose, is the fact that these stories made it to the media because they were newsworthy, which indicates that they do not appear in most associations throughout the country. However, when the stories do appear, they do little good for community associations and are extremely adverse for the association which is the topic of the story. Community association boards, community association managers and community association attorneys are all responsible for preserving, protecting and enhancing the value of the communities in which they are involved, and a good start would be ensuring that decisions are well thought out so that the community associations do not act unreasonable. It is hoped that common sense in America has not died, but it certainly is not as healthy as it could be