Condo Media - September 2023 - 23

TUESDAY, SEPT. 19
NOON TO 1:00 P.M.
C
Covenants, rules, and regulations
in the governing documents have legitimacy
and purpose and are an integral part of
community association living. Unit owners
buy into a community association for many
reasons, including the restrictions placed on
the use of common area space, and those
restrictions can enhance the value of the
units and often affect the day-to-day activities
of unit owners in signifi cant ways. As such,
enforcement of covenants, rules, and regulations
is of paramount importance.
Condominium boards are empowered to
enforce the covenants, rules, and regulations
and to collect reasonable fi nes for
violations. But a board must be mindful of
enforcement traps including, for example,
potential violations of fair housing statutes
and regulations, violations of the United
States Constitution or provisions of the applicable
state constitution, failure to comply
with enforcement procedures in the governing
documents, and in general the failure
to employ common sense.
This article offers guidance to avoid
enforcement traps that could lead to costly
litigation and responsibility by the condominium
board for damages and attorneys'
fees for violations of the governing documents
or state and federal law.
Violation of Fair
Housing Statutes
Rules and regulations must be drafted,
implemented, and enforced in a consistent,
nondiscriminatory manner to avoid violating
the federal Fair Housing Act (FHA),
42 U.S.C. §§ 3601-19, and its Massachusetts
analogue, M.G.L. c. 151B. The FHA,
which applies to people and entities that are
involved in the provision of housing (community
associations included), prohibits
discriminating against anyone in housing
ment
because of that person's race, color, national
origin, religion, gender, familial status,
or disability.
The enforcement of what may appear
to be well-reasoned and objectively reasonable
covenants or rules and regulations
can run afoul of fair housing principles
embodied in the FHA. For example, rules
and regulations that limit what children
can do on the common areas should be
screened for compliance with the FHA
before a unit owner is threatened or fi ned
because the FHA prohibits discriminating
against families with children, and a rule
that interferes with the use and enjoyment
of housing based on familial status
can violate the statute and regulations.
Similarly, certain rules and regulations may
not be fully enforceable, or enforceable at
all, against persons with disabilities who
may be entitled to accommodations that
modify or eliminate the application of
certain restrictions including, for example,
emotional support animals in associations
where pets are otherwise prohibited.
Violation of the
U.S. or State
Constitution
Condominium rule making must be reasonable.
That is, again generally speaking, if a
restriction is not reasonable it will not be
enforceable against a unit owner. When condominium
restrictions veer into rights that
may be protected by the U.S. Constitution, or
applicable provisions of the state's constitution,
constitutional principles may limit the
enforceability of a restriction and/or require
an association to meet a higher threshold
based on the substantive rights impacted by
the restriction. For instance, in Massachusetts,
in certain circumstances, the fi rst amendment
applies to condominium rule making pertaining
to the placement of materials on the
common areas, including signage displays.
It is therefore possible that the enforcement
of a restriction on the posting of signs (in
a unit or even on the common area) could
implicate the fi rst amendment.
Similarly, under Massachusetts law, any
person seeking signatures in connection
with access to the ballot, and distributing
material associated therewith, has a right
under Article 9 of the Massachusetts Declaration
of Rights to do so in a reasonable and
unobtrusive manner. The law imposes limitations
on private owners' restrictions regarding,
among other things, canvassing activities associated
with public elections and ballot initiatives.
In Glovsky v. Roche Bros. Supermarkets,
Inc., 469 Mass. 72, 762 (2014), the Supreme
Judicial Court held that the right to gather
signatures under Article 9 extends to privately
owned supermarkets including in the parking
lots and common areas. A condominium rule
which restricts or prohibits the solicitation
of signatures in connection with such public
undertaking could run afoul of the law.
These are just two examples based on one
state's laws, but similar concerns would exist
in any other state. The concern, however, goes
beyond the mere enforceability of the restriction.
A violation of a constitutional right could
entitle the purportedly harmed party to bring
a claim against the association for damages.
Therefore, any enforcement action that could
arguably impact constitutionally protected
rights should be assessed so that the board
is aware of potential counterclaims and
liability for same.
Failure to Comply
with Discipline
Requirements
Condominium governing documents may
include progressive discipline requirements
whereby a unit owner found to be in violation
of a covenant, rule, or regulation must fi rst
receive, for example, a written warning of
the violation, and only after the written
warning is received, a fi ne or other discipline.
In some instances, there may be discretion to
avoid progressive discipline if the behavior
is egregious but even in that circumstance,
the board should address the exception and
be sure to demonstrate facts that justify the
avoidance. A failure by the board to follow the
protocol outlined in the governing documents
may cause a court to refuse enforcement.
Similarly, some governing documents
require alternative dispute resolution prior
to a board initiating a lawsuit against a unit
owner. The board's failure to follow the provisions
of the governing documents may result
in the dismissal of a lawsuit and the unnecessary
incurrence of attorneys' fees.
September 2023 CONDOMEDIA 23
https://www.caine.org/2023-lunch-learn-registration-page-september/
Condo Media - September 2023

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