Condo Media - October 2020 - 37

"[Unit owners are considered to be]
knowing of and accepting the restrictions to be imposed." Noble v. Murphy,
34 Mass.App.Ct. 452, 459 (1992)
(quoting Hidden Harbour Estates,
Inc. v. Basso, 393 So.2d at 639-640).

2

Since they have elected to become part of the community
and the governing documents
have been on record since the creation
of the condominium association, unit
owners are expected to follow the rules
at their association:
"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 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 (1993)
(quoting Hidden Harbour Estates,
Inc. v. Norman, 309 So.2d 180, 182
(Fla.Dist.Ct.App. 1975).

The moral of the story - associations have rules and
all are expected to know of and follow those rules.
(RSA 356-B) provides, at Section 15,
that the prevailing party in a dispute
concerning enforcement of the governing
documents shall recover all costs and
attorney's fees. Thus, in New Hampshire,
the stakes in an enforcement are high.
Since a unit owner ordered to pay an
association's legal fees would be doing so
individually (without contribution from
their neighbors), those stakes are even
higher for an owner accused of breaking
rules than for the association itself.
Notwithstanding all of the above,
board members and unit owners must
ultimately live together - literally, if
they are residents of an association. As
a plaintiff in a rules enforcement case,
the association (through its board) will
be required to bear the initial burden of
proof with respect to its case. So, board
members should be careful when starting

into such matters to ensure that they
have complete information and sufficient
evidence to establish the violations.
I recommend documenting both physical
evidence and any witnesses in the matter
sooner rather than later.
The moral of the story - associations
have rules and all are expected to know of
and follow those rules. Disputes over rule
violations are no fun and they can be costly to anyone landing on the wrong side of a
case. So, unit owners and board members
alike should do their best to abide by the
governing documents and to resolve any
issues as efficiently as possible.

"[The rules may] have a certain degree
of unreasonableness...and yet withstand attack in the courts." Ibid.

IS A PARTNER WITH MARCUS, ERRICO,
EMMER & BROOKS, P.C. AND CHAIR
OF THE NEW HAMPSHIRE LEGISLATIVE
ACTION COMMITTEE (NHLAC).

To Protect
& Preserve

Though more recently decided in
Massachusetts, the language of the case
above originated with a case in Florida.
Often, condominium law develops
to the south and the west of the New
England area and then "migrates"
towards us. My point is that unit owners who do not wish to follow rules can
land themselves in a great deal of legal
trouble with their associations. Board
members in New Hampshire now have
a statutorily-defined fiduciary relationship with their associations. Thus, when
appropriate, board members actually
have a duty to enforce the governing
documents of their condominium.
PAYMENT AND PROOF
The consequences of landing on the
wrong side of an enforcement case with
a condominium can be dire from both
practical and financial standpoints.
The New Hampshire Condominium Act

■ GARY M. DADDARIO, ESQ., CCAL

Statewide RM specializes in
preserving or restoring your
building envelope.
If harsh New England weather
wears down your mortar and
water is penetrating your
building or if your brick is
looking its age, you can count
on us to restore it for you. We
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www.StatewideRM.com
October 2020 CONDOMEDIA

37
Condo Media - October 2020

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