Condo Media - March 2011 - 22

RHODE ISLAND N e w s

by Frank A. Lombardi, Esq.

R e g i o n a l

An Important Distinction
Ask for Forgiveness or Get Permission

C A I

went to Las Vegas for CAI’s annual national law seminar in late January and heard a multitude of stories and read several cases updating us as community association law is ever changing. What never changes is human nature, and this was evident during the discussion of several interesting case categories, especially those that centered on covenant enforcement. The theme of this years’ case update was the question: Is it better to ask for forgiveness rather than permission? That is, when a unit owner is contemplating doing something with his unit that is against the rules, is it better just to ignore the rule and when caught ask for forgiveness, or should he ask for permission to break the rule? I say it’s simply not worth the risk of asking for forgiveness, and it’s better to ask for permission first. If the request for a deviation from the rules is denied, then stop there or perhaps ask for an exception. But, alas, human nature being such as it is, that is not so easy for some people.

comply with the rule. Unmoved by his plea for forgiveness, the court upheld the homeowner association’s height restriction and now Cramer has to tear his house down. People are aware of covenants, restrictions and rules, and some choose to ignore them, whether they are pet, parking, pools or height restrictions. No pets; they buy a cat. No dangerous animals; they buy a pit bull, surrounded by two unit owners with young children. No encroachment on common elements; they build a shed, and so on. These are covenants, rules and regulations that all unit owners, presumably adults, knowingly sign onto when they buy a unit. This is not fighting oppression by “the man” a la Bob Dylan or even his predecessor in civil disobedience, Henry Thoreau. No, height restrictions (like the one above) were designed to protect the values of homeowners within the association, and in that particular case, lakefront views.

Dissident Owners
One case at the seminar, from California, Clear Lake Riviera Community Association v. Cramer, was especially interesting as it involved the enforcement of a height restriction on buildings. Mr. Cramer lived in a homeowners association where no house could exceed a certain height. Cramer knew of the restriction and built his house nine feet higher, effectively ruining the view of two neighbors of the lake. The association sued on the breach of its covenant. Cramer cited a hardship in that his house was already built by the time the case got to court and it would cost him $200,000 to

Document and Statute Protections
As in California, in Rhode Island we have covenants within the condominium documents, and the Rhode Island Condominium Act to ensure that the will of the many is respected as opposed to the will of the individual. We also have methods of enforcing those rules and covenants within the documents and the law. Section 343.1-3.20 of the Condominium Act permits the association to fine a unit owner for breaches thereof. As in our California case, if the unit is already up, the board could presumably fine the owner $100 per day until the unit

is removed. Section 3.02 also permits the association to institute legal proceedings to enforce the covenant. I am sure the association in the above case used a similar provision in California law to start the action. And, in the case above, if another unit owner decides to deliberately flout the covenant or, “do first, ask for forgiveness later” then none could or should be had, because it looks like his acts were deliberate and in bad faith. He clearly would have violated section 1.11 of the Rhode Island Condominium Act, which imposes an obligation of good faith upon him when dealing with the association. Lastly, and most importantly, under section 4.17 of the act, he would be subject to a court order requiring him to pay punitive damages to the association for his willful refusal to follow the covenant, and, most importantly, requiring him to reimburse the association its attorney’s fees and costs. What saved the Clear Lake Riviera Community Association was the careful attention the board paid to the construction of the house. There was evidence introduced at trial that Cramer was made aware of the 17foot limitation before and during the construction of his house, but that he continued on anyway. Boards in Rhode Island should be sure to heed the lesson from the Cramer case. CM Frank A. Lombardi, Esq., is a partner in the law firm Goodman, Shapiro and Lombardi LLC. Co-Chair of the Rhode Island Legislative Action Committee (RILAC), he is also a member of the Rhode Island Regional Committee, and a frequent author and speaker.

CONDO MEDIA • MARCH 2011

Condo Media - March 2011

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