Condo Media - October 2022 - 44

The Region MAINE
A condo association's board of directors
is responsible for enforcing Maine
legal requirements for condominiums,
including the Declaration, bylaws, and
rules. I will refer to them collectively as
the " rules. " Most people familiar with
condominium operations agree that consistent
enforcement is essential to harmony
within the community. Therefore,
consistent enforcement is and should
be the board's primary goal. Failure to
enforce the rules weakens the board's
authority and can lead to deterioration
of the community.
Declaration,
Bylaws, and Rules
Enforcement in the Condominium Community
[By Joseph G. Carleton, Esq., CCAL]
Michael and Patricia Garrity, seeking additional living space in their unit at
a condominium in Wells, Maine, punched a hole in their ceiling, created a bedroom
in the area upstairs, and installed a pull-down staircase for access to it.
The association, seeing this as a clear violation of the Declaration, fined them
$25 per day, creating a lien on their unit. When the Garritys refused to remove
the improvements, the association took them to court.
The Superior Court judge, finding that the unit boundaries described in the
Declaration and plans were ambiguous and incomplete, and citing that the
developer and the association allowed two other units to access the attic similarly,
ruled for the Garritys. On appeal, the Maine Supreme Court declined to
overturn it while not precisely endorsing the lower court's decision.
This was not the end of the story. The Garritys then went back to the lower
court, saying they were the " prevailing party " in the case and were entitled to
have their attorney's fees paid by the association, as is required by Maine's
condominium laws. The lower court agreed. On appeal, the Supreme Court
also agreed. The association then had to pay both their own substantial attorney's
fees and those of the Garritys.
44 CONDOMEDIA October 2022
ENFORCEMENT TOOLS
Generally, the board enforces the rules
by leveling fines on the offending unit
owner. Maine law makes properly assessed
fines an automatic lien on the
unit. An owner cannot escape the penalty
by selling or transferring the unit.
In addition, Maine law requires the unit
owner to pay the association attorney's
fees, making them part of the lien if the
association has to go to court to collect
the fine. This only applies if the association
is the " prevailing party. " In most
cases, trying to enforce the documents,
rules, and the law by going directly to
court is unrealistic. Court action is costly
and can take years.
Because of the collateral damage
to the community caused by pitting
neighbors against neighbors and the
emotional stress involved, the board
should, in most instances, attempt informal
means to resolve the issue before
starting enforcement action. If informal
persuasion fails, the board of directors
must face the pros and cons of moving
on to a more formal process. While this
process will inevitably result in some
collateral damage, it's still essential that
it be perceived as fair.
WHEN NOT TO ENFORCE
Some provisions in condominium documents,
especially rules, would not hold
up if challenged in court. In addition to
ambiguous language in the documents,
some requirements, especially governing
the use of units themselves, contradict
Maine law. At the same time, other
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