Condo Media - September 2023 - 42

The Region VERMONT
Rules and
Compl Reasonableness
iance with Applicable Laws
and Other Governing Documents
[By Christina Jensen, Esq.]
We've all heard tales of crazy rules
adopted by over-zealous association
boards -Reddit is full of them. It's easy
to believe that boards doing their best
to strike the right balance of interests
in managing their communities - the
majority, in my observation - would
never run afoul of the limitations on
their authority. It's unfortunately
easier than one would think.
VERMONT STATUTE PROVISIONS
Vermont's Common Interest Ownership
Act empowers associations to adopt and
amend rules, with some limitations. The
most fundamental principle appears last
in the list, but I always refer to it first:
All rules must be reasonable. The other
limitations refine that principle:
l An association may adopt rules to establish
and enforce construction and
design criteria and aesthetic standards
if the declaration so provides
and if the association also adopts procedures
for enforcement of standards
and for approval of applications.
l Rules regulating the display of the
United States flag must be consistent
with federal law, and rules relating to
the display of the state flag or political
candidate or ballot question signs
on a unit or limited common element
are limited to the time, place, size,
number, and manner of those displays
- they can't be prohibited.
l Rules regarding peaceful assembly
of unit owners on common elements
42 CONDOMEDIA September 2023
for consideration of matters related
to the community are limited to the
time, place, and manner of those assemblies
- they can't be prohibited.
Some of the thorniest questions
which arise regarding rules relate to
rules affecting the use of or behavior
in residential units. Such rules may
be adopted only to:
1 Implement a provision of
the declaration;
2 Regulate any behavior in or
occupancy of a unit which
violates the declaration or adversely
affects the use and enjoyment of other
units or the common elements by other
unit owners; or
3 Restrict the leasing of residential
units to the extent those rules
are reasonably designed to meet
underwriting requirements of
institutional lenders that regularly make
loans secured by first mortgages on units
in common interest communities or
regularly purchase those mortgages.
VERMONT'S COUNTERPART
TO THE FAIR HOUSING ACT
To further complicate the board's task,
Vermont has generally applicable
statutes that impact rulemaking and
enforcement. In particular, Vermont's
counterpart to the federal Fair Housing
Act (which also applies to associations)
makes it illegal to:
l Discriminate because of the race,
sex, sexual orientation, gender
identity, age, marital status, religious
creed, color, national origin, disability
of a person, because a person
has minor children, receives public
assistance, or is a victim of abuse,
sexual assault, or stalking; and
l Refuse to make reasonable accommodations
in policies, practices,
rules, or services when necessary
to afford a person with a disability
equal opportunity to use and enjoy
a unit, including public and common
areas.
As a practical matter, application
of these provisions can be challenging;
not only must rules be reasonable
and respect the limitations imposed
by the Common Interest Ownership
Act, but they must not discriminate
on any prohibited basis - and even
then, an association may be required
to modify them if necessary for a person
with a disability to use a unit and
the common elements.
Let's assume for the purpose of this
article that the rules we're reviewing
don't contradict any provision in the
declaration or bylaws, though that's
not an assumption we make " in real
life, " and consider some common rules
which may prove problematic.
It's not uncommon to see rules restricting
occupancy in residential units
to a specified number of unrelated
persons. These rules may be adopted
for a variety of reasons:
l The board may believe that the units
in the community are too small for
occupancy by more than a specified
number of people;
l The board may be concerned about
the possibility of rental to a group
of rowdy college students and
disturbance of the peace in the
community; or
l The community may be subject
to permitting restrictions on the
number of occupants in a unit.
Condo Media - September 2023

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