FAQs About House Rules (Redux)

Should we change our house rules or our governing documents?

Generally speaking, if you want a controversial policy (like banning smoking) to stay in place and withstand a legal challenge, you’re better off amending the governing documents. Because such a change requires that you get the support of a solid (usually two-thirds) majority of the shareholders/unit-owners – which is harder to do and usually requires some intense persuading – it gives more validity and permanence to the change. A house rule is more easily challenged in court or changed by a new board that has a simple majority of its members opposed to the rule.

When is a house rule not a house rule?

Let’s answer that question with a question. Imagine you have a shareholder who owns 17 cats. Your board thinks that’s too many and passes a house rule limiting cat ownership to two per unit. What should the cat lady do? The answer: not a thing. That house rule was not bonafide because it runs afoul of the New York City “Pet Law,” which allows pet owners in pet-prohibited building to keep their pets – provided they can show the board (or staff) knew the animals were there and did nothing about it for 90 days. The rule of thumb: when a house rule runs counter to city, state, or federal law, the house rule always loses.

In addition, a house rule must be consistent with what’s laid out in the proprietary lease. Attorney Peter Livingston, a partner in the firm Rosen, Livingston & Cholst, cites a case involving pets in a Queens condominium that had language in the lease that dogs “shall not be a nuisance.” The board wanted to get rid of pets, so it passed a house rule that said, “Going forward, there shall not be any pets.” A court challenge followed and the house rule was invalidated because it ran contrary to the lease, which did not preclude pets. It simply said shareholders could not have pets that are a nuisance.
 
“In that particular case, they weren’t alleging that the pets were a nuisance,” Livingston explains. “They just wanted to get rid of the pets. If you’ve got something in your [condo] declaration or you’ve got something in your proprietary lease that clearly states the circumstances under which you can ban pets, you can’t contravene that as a board by simply passing a house rule.”

Coming tomorrow: enforcing house rules with fines and other tools.