When breaking 'house rules' is OK

Condo manager says temporary parking space is not a violation

By Inman News Feed
Add Comment Add Comment | Comments: 0 | Posted Sep. 25, 2012

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Condo manager says temporary parking space is not a violation

Benny Kass
Inman News®

DEAR BENNY: I manage a condominium property where a previous board of directors had put in the appendix that when changes are made to the rules they must be submitted to the members for input prior to being passed and going into effect.

At a board meeting it was stated that someone in the building was upset because the manager (me) was parking in the front of the building instead of in the space in the rear of the building that was designated for the manager. I informed the people present that I was parking in front of the building because we are in the middle of a fan coil and riser replacement project and the workmen needed my space in the back.

I then stated that the board had the authority to allow the violation of any house rule that was not derived from the declaration or bylaws because, although it is admirable and probably politically savvy to get input from the community prior to amending the house rules, it was legally not necessary since the bylaws clearly give the board of directors the authority to create and amend the house rules.

I have one board member who disagrees with all that and says the board must go through the amendment procedure set up in the house rules to allow any violation or amendment to the house rules. I have tried to tell her, based on the hierarchy of the declaration, bylaws and then rules, that the bylaws that give the authority trump the rules that a previous board may have passed.

This kind of surprised me because I even referenced to this board member about a year ago when we suspended the "no bicycles allowed on balconies" rule for three weeks while we were involved in a previous phase of the fan coil and riser replacement project.

This was a perfect case of the board using its authority to "allow a violation of a rule" or suspend a rule for the benefit of the building. I believe that is why developers' lawyers don't put all the rules in the bylaws, because it would shackle the hands of the board when it might be necessary to suspend or change a rule.

Could you tell me who is right? --Ed

DEAR ED: There is no "right" or "wrong"; it is all spelled out in the legal documents of every association. You are correct that there is a hierarchy in condominium law. The primary source is the Condominium Act enacted by your state legislature. Next comes the declaration, then the bylaws, and finally the rules and regulations.

Typically, you need a supermajority vote of the members to amend the declaration and the bylaws. And generally, the board enacts the rules and regulations and does not need input from the owners. However, in Maryland, for example, the Maryland Condo Act does impose a requirement that owners get involved in the rule-making process.

So, the answer is: Read your legal documents including your state statute. I have found, based on my law practice experience as well as letters from readers of this column, that all too often no one really pays attention to those documents until it is too late. I actually had a board of director once tell me, "I don't have to read the bylaws; that's your job."

Can the board waive violations of the rules and regulations? That's a good question. I maintain that under certain circumstances, the board can ignore violations, especially when there are compelling reasons to do so. I also know that some of my fellow attorneys in the community association field disagree, but, as we all know, when there are two lawyers, there are at least three opinions.

Finally, I do believe firmly that when the board plans to enact (or amend) a rule, even if it has the absolute authority to do so, it should submit the proposal to the membership. I tell my condo board clients: "Enact the rule but have it go into effect 30 days from now. In the meantime, send it out to all owners, and give them an opportunity to comment within the 30-day period. If there are serious objections and concerns, the board can go back to the drawing board."

DEAR BENNY: I am interested in your input on the government-sponsored Home Equity Conversion Mortgage that seniors can use to purchase a home.

At this time the only knowledge I have is that it is for persons age 62 and older, no qualifications other than being able to put 50 percent down and the rest if financed with no payments on the part of the applicant. The applicant must live there at least six months and one day out of the year. There is a 2 percent closing cost. Also the applicant pays for an inspection that has to pass FHA qualifications.

Do you believe this is too good to be true? --Rose

DEAR ROSE: The Housing Recovery Act of 2008 allows seniors to purchase a home using a reverse mortgage. There is a lot of confusion among real estate brokers and lenders as to how this works.

But yes, it is a good concept. I don't know much about it, so I went to the Internet, typed in "reverse mortgage purchase" and found a lot of useful information.

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