Is Your Co-op or Condo Board Enforcing Phantom Rules?
April 12, 2013 — We often hear of boards enforcing a variety of rules restricting pets, leasing, guests, commercial vehicles and more. Many times these restrictions are proper and the board is within its rights to enforce them. However, sometimes it is discovered that a long-standing restriction doesn't really exist. How does it happen that some boards are enforcing phantom rules?
When condo and co-op boards are elected, sometimes the new directors do not review the governing documents with care (or even at all) and rely, instead, on longstanding patterns of practice by previous boards.
Some directors are astonished to discover that the new purchaser-approval language doesn't mention at all a requirement that they themselves were subjected to when they moved in. The same false patterns can hold true for something as controversial as a pet restriction or as innocuous as the date of the annual meeting being wrong.
Naturally, at some point an owner may challenge an enforcement action and respond with the obvious: "Show me where in the documents it says that." If a board cannot demonstrate the authority to enforce a certain restriction, it may wind up paying attorney's fees and costs to the opposing party as well as undermining membership confidence.
Every board of directors would be well advised to undertake an annual rules and regulation audit to determine which restrictions are currently enforceable pursuant to the association's governing documents as well as current law.
Donna DiMaggio Berger is a founding partner with the law firm Katzman Garfinkel & Berger. A blogger on homeowner association legal issues for such newspapers as the South Florida Sun-Sentinel, she serves as executive director of her firm's Community Advocacy Network. This article is adapted from a post at her blog, Condo and HOA Law.
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