Condo Media - July 2014 - 39

Sure, we all know that there are
monthly fees to pay, but that's just the
tip of the iceberg. Do you know if there
are restrictions on pets, parking, storage,
or smoking? Is there a waitlist to rent
your unit? What about a right of first refusal? Can you operate your home-based
business in the unit? If you don't like
what the board has to say about your
leaving wet sneakers in the common
hallways after a run in the rain, do you
have any recourse when they fine you?
These are questions that many folks
often don't even think about until after
they have already invested a substantial
sum of money in the purchase of their
new home. As counsel for numerous
condominium associations, we are all too
familiar with circumstances where unit
owners run head-long into costly disputes with their boards. Most, if not all,
of these spats are avoidable with a proverbial ounce of prevention. By reading
your condominium documents (Master
Deed, Declaration of Trust/Bylaws, and
Rules and Regulations) before you buy,
you can save yourself a lot of trouble in
the long run.
Now, I know that these documents
are long, boring, and overrun with
unintelligible legalese and jargon. But
in the hour or two it takes you to slog
through them, you could potentially
save yourself hundreds or thousands of
dollars, not to mention aggravation and
unrest. And while it would be best to
read the entirety of the documents, I'll
offer a hint for those short on time or
patience: if nothing else, at least skim
through the whole thing to find the use
restrictions and prohibitive covenants.
These are usually the problematic spots
for the unwary, and here are some
obvious (or perhaps not-so-obvious)
examples to consider:

* Rental Rules. Is the unit an investment? If so, are you positive that
you can lease it? It's difficult to make
money on vacant rental property, so it
is imperative that you make sure you
have reviewed the rules on leasing. Is
there a waitlist or a limit on the number of rental units in the condominium? Are there other investor limitations? If properly incorporated in the
governing documents, rental restrictions have been deemed enforceable and can have serious economic
consequences for the unwary.

* Pets, Pools, and Parking. Most
people don't miss these. Make sure
Fluffy, your 120 pound Rottweiler is
welcome and that you have access to
both resident and visitor parking if
necessary. Read the rules about recreational facility usage, if applicable, and
make sure they work for you.

Regardless of our personal feelings
on the appropriateness of a given set of
restrictions, the courts of the Commonwealth have been clear and consistent.
"Central to the concept of condominium
ownership is the principle that each
owner, in exchange for the benefits of
association with other owners, 'must give

* Smoking. We have seen a considerable increase in associations adopting
no smoking provisions, which may apply to both units and common areas.
Obviously, this could be troublesome
for the owner who just can't quit.
* Home Business Limitations. Just
because the zoning bylaws of the municipality in which the unit is located
say you can run your piano teaching/
home daycare/herbal supplement
sales business out of the unit doesn't
necessarily mean that you can. We
have successfully enforced restrictions
preventing the operation of businesses
in units where the governing documents specifically prohibit such use.
* Signs, Decorations, etc. Do you take
Clark Griswold-esque pride in your holiday decorations? Do you like to fly the
old alma matter banner from the balcony or in front of the door? This may be
a problem (especially if a member of the
board attended a rival institution). In
all seriousness, while these issues do not
have the same economic consequences
as rental or business restrictions, the
disputes they spur are no less heated.

up a certain degree of freedom of choice
which he might otherwise enjoy in separate, privately owned property.'" Noble
v. Murphy, 34 Mass. App. Ct. 452, 456
(Mass. App. Ct. 1993) (citing Hidden
Harbour Estates, Inc. v. Norman, 309 So.
2d 180, 182 (Fla. Dist. Ct. App. 1975)).
"Those who submit real estate to the condominium regime of c. 183A may impose
reasonable restrictions on the use of units,
and persons who contemplate acquisition of a condominium unit can choose
whether to buy into those restrictions."
Woodvale Condominium Trust v. Scheff,
27 Mass. App. Ct. 530, 533 (Mass. App.
Ct. 1989) (noting Franklin v. Spadafora,
388 Mass. 764, 771-773 (1983)).
It is also important to be aware that
a unit owner who violates his or her
condominium documents is more often
than not responsible for the costs of the
association's efforts to enforce the documents. Fines, costs, and even attorneys'
fees can quickly add up to thousands of
dollars over even "minor" infractions.
While there are certainly situations
where unit owners have triumphed
in challenging board action or invalid
restrictions, these "wins" may be pyrrhic
victories given the costs involved.
The notion that one should have the
freedom to do what one wants in one's
home is - as they say - as American
as apple pie and baseball. But for better
or worse, the courts across the country
have also said, in effect, "You bought
into it, you should have known better."
If this seems like a harsh result, think of
the flipside: what about the owners who
purchase because there is a prohibition
on smoking or pets? Is it fair to them
that someone else breaks these rules?
Condominium ownership can be a
great thing, if you do your homework.
My advice is to take the time to do it.
Condominium ownership is a choice,
the courts have said, and it is our job as
buyers to make it an informed one. CM
Scott Eriksen, Esq., is an associate with
the law firm of Perkins & Anctil in Westford, Mass. An active CAI-NE member,
he serves on the chapter's Emerging Leaders Network committee.
Condo Media * July 2014

Condo Media - July 2014

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