Condo Media - November 2024 - 33

The holding in these decisions is that if
you are attempting to control what an
owner or resident can do inside the unit,
then it should be via a restriction that
was either in the original master deed
or bylaws or by amendment to the master
deed or bylaws. This harkens back to
the difference between restrictions in
the master deed and bylaws that require
a requisite amount of unit owner approval
to enact or amend versus a rule
that may be enacted or amended by vote
of a majority of the board.
While these decisions were primarily
concerning rules about pets, the
holdings also apply to other attempted
restrictions on the unit, such as smoking
and leasing restrictions.
While a board may go for years
enforcing a rule, when faced with a
challenge that may require court action,
we often find ourselves advising clients
that they do not have a case.
l Rules regarding the common areas
that are not enforceable: The prior example
may lead a board to believe that as
long as the rules are concerning activity
and use of the common areas and not the
unit, then they will be enforceable. Not
so fast: for example, a rule prohibiting
all satellite dishes and antennas from
being installed anywhere on property
is not enforceable as it violates Federal
Communications Commission (FCC)
regulations of interstate and international
communications through cable,
radio, television, satellite, and wire.
Pursuant to the FCC regulations, an
association must allow certain types and
sizes of satellite dishes and antennas
when owners seek to install them on or
in exclusive-use common areas. Yet time
and time again, we see rules prohibiting
them from anywhere on the property.
Another type of rule that boards frequently
enact, and one of the areas that
can cause them the most grief in terms of
penalties and potential awards of damages
to be paid by the association, is a rule
that restricts the activities of children in
the common areas. Rules that apply only
to children and not all residents may have
good intentions by the board enacting
them, but they are deemed discriminatory
against families with children.
For instance, a common rule requires
anyone under the age of 18 to be accompanied
by an adult at the pool area
and in the pool. Boards will enact such
a rule and suggest that it is reasonable
because they are looking out for the
safety of children, only to find out that
the mere act of having the rule in place,
even if not enforced, has been deemed
to be discrimination against families
with children. The regulators of the
Federal Fair Housing Act and the decisions
of the U.S. Department of Housing
and Urban Development (HUD), the
Massachusetts Commission Against
Discrimination (MCAD), and the
Courts have all deemed such a rule to be
unenforceable, and worse for those associations
that have it (whether enforced
or not), discrimination against families
with children. Having such a rule gives
an owner with children a case to file with
HUD or MCAD, subjecting the association
to paying damage awards, fines,
penalties, and sometimes attorney's fees
for the other side and forced education
concerning discrimination in housing.
Likewise, a rule prohibiting children
from playing in the common area has
also been deemed discrimination
against families with children.
Something as simple as a rule that
states a prohibition against storing baby
carriages, toys, and other children's
items in the common area is also not
recommended, as it appears to target
families with children. Rather, a simple
rule that states " no storing of personal
items in the common area " regulates
the same thing without the appearance
of targeting children.
l Rules that conflict with the master
deed, trust, or bylaws: Another area
where a rule may be unenforceable is
when the board enacts a rule that conflicts
with a provision in the master deed,
trust, or bylaws. A common example of
this is when the board enacts a rule with
a fining schedule to let owners know the
amount of fine they may be assessed for
violations. The board or property manager
will then write a notice of violation
letter to the owner stating that a fine in a
certain amount is being assessed against
the unit account, only to find out later the
fine is not enforceable because a somewhat
common provision in the bylaws
states that while the board has the power
to levy a fine, it is limited as to the amount.
In older sets of condominium documents,
the amount can be as low as $5.
All of this leads to the conclusion that
while the board can enact and amend
rules, it is often a good idea to have the
association's counsel review them relative
to enforceability. Finding out before
you finalize the rules and put them into
place can save the board the surprise of
learning later that all the enforcement
efforts taken were for naught.
n PAMELA JONAH, ESQ., IS A PARTNER
WITH THE LAW FIRM MARCUS, ERRICO,
EMMER & BROOKS, P.C.
FROM
DAILY MAINTENANCE
TO
FINANCIAL MANAGEMENT
WE TAKE CARE OF
ALL ASPECTS
OF YOUR PROPERTY
978-452-7708
PO BOX 315, North Billerica, MA 01862
www.apmanages.com
November 2024 CONDOMEDIA 33
Condo Media - November 2024

Table of Contents for the Digital Edition of Condo Media - November 2024
