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Owners bound by most amendments to Declaration of Condominium


Question: I own a unit in a small (10-unit) condominium. It is located in a tourist-zoned area. I have lived here 35 years in a tranquil, residential-restricted association, where owners can rent their units, but it must be for 90 days or longer.

Some more recent buyers (investors) would like to change our condo bylaws/restrictions to allow short-term rentals, where there is no rental time restriction, creating a motel/hotel atmosphere of coming and going, vacationing, and partying into the “wee” hours. This would be taking away the peaceful enjoyment of the property of the owners living here as homeowners, which is the reason we purchased our units — and we do not want this change to be made.

Our condominium documents do not address the procedure for making such a major change to our bylaws. Can a majority of owners bring about such a major change, affecting the quality of life for all of the owners, against the desires of a few, or would it be legally required that all owners would have to approve such a major change? — S.D.

Answer: In one of the preeminent cases regarding the ability of the membership of a condominium to amend the governing documents, a court held that unit owners own their units subject to the knowledge that the restrictions that govern their community may be amended by a vote of the membership, and therefore owners are generally subject to such changes. That case was in the context of creating increased rental restrictions, but the same legal philosophy applies to reducing restrictions, as well. While I appreciate the impact that short-term rentals would have on your community, the same can be said of adding leasing restrictions, and the cases have been clear that would be allowed. Note that the Condominium Act does provide that an amendment altering the duration of rental terms applies only to unit owners who consent to the amendment or who acquire title after the date of the amendment — but of course, every unit owner who wants to lease their unit for less than 90 days is going to consent, so that is a non-issue.

Your Declaration of Condominium may be amended as provided therein. So, your best option is to actively campaign and to try to make certain the amendments do not pass.

Q: It was my understanding that not only does the secretary of a condo association have to post the meeting notice and agenda 48 hours prior to a board meeting, but also that no new agenda items can be added after that time. Our condo association has recently started adding new items to the agenda at the start of the meeting simply by voting to change the agenda. Couldn’t this process be used to manipulatively attempt to avoid participation on hot-button items? — D.D.

A: The issue you raise illustrates the inherent conflict between general rules of parliamentary procedure, such as Robert’s Rules, and the Condo Act. Parliamentary procedure would allow an administrative body to amend an agenda before or during the meeting. But, the Condo Act requires boards to post an agenda well in advance of the meeting specifically so that owners are aware of the items up for discussion, and so that they may determine whether or not to attend. The HOA Act, in contrast, does not require an agenda to be posted in advance, only the notice of the meeting — and so this issue would presumably not be a problem in an HOA, unless the bylaws have a separate requirement providing that the directors or members must receive a copy of the agenda in advance.

Similar to what you describe, it is not uncommon to see minutes that, as an agenda item, list “any and all such other business as may properly come before the board.” This, to me, is an end-around as well. If an item is an emergency and therefore must be discussed on less than 48-hours’ notice, the Condo Act allows for that to happen. If it is not an emergency, at most, a board might introduce the issue for preliminary discussion, but then table any decision-making until the next meeting.

The problem with this discussion is that it is largely academic. There is little penalty for violating the law regarding the posting of an agenda, as the violation can be easily cured by the board simply by posting a new notice and agenda, and then rediscussing and ratifying their prior decision.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to condocolumn@gmail.com. Please include your hometown.



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