By Robert Nislick
As part of a condominium board’s authority to manage and control the common areas of a condominium, the trustees often adopt by-laws and rules and regulations which govern how the unit owners can use the common areas and their units.
Typical by-laws and rules and regulations cover topics such as parking, pets, personal property, and noise, to name a few.
Unit owners are obligated to comply with the condominium’s by-laws and rules and regulations. “Each unit owner shall comply with the by-laws and with any administrative rules and regulations adopted pursuant thereto, as either of the same may be amended from time to time . . . .” G. L c. 183A, § 4(3).
A board has the authority to enforce the by-laws and rules and regulations by levying fines. “Such corporation, trust or association shall have, among its other powers, the following rights and powers:—(5) To . . . levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners.” G. L c. 183A, § 10 (b) (5).
Additionally, if the trust incurs expenses as a result of the unit owner’s failure to abide by the by-laws and rules and regulations, it can assess that expense against him or her. “If any expense is incurred by the organization of unit owners as a result of the unit owner’s failure to abide by the . . . by-laws, restrictions, rules or regulations, . . . the organization of unit owners may assess that expense exclusively against the unit owner and such assessment shall constitute a lien against that unit . . . and such assessment shall be enforceable as a common expense assessment under this chapter.” G. L c. 183A, § 6 (a) (ii).
Let’s say the board has adopted a certain by-law or rule and regulation, and a unit owner wants to challenge it. The unit owner argues that the by-law or rule is invalid. How will a court review the by-law or rule?
In Johnson v. Keith, 368 Mass. 316 (1975), a condominium unit owner sought a declaration against a board of managers of a condominium that a rule prohibiting the keeping of animals in condominium units or the common areas was not valid and enforceable against her with respect to her dog.
Such a rule was not enforceable against the unit owner in this case because it sought to regulate the unit owner’s conduct in her unit. The Court stated: “[B]y statute administrative rules and regulations may govern the details of the use and operation of common areas and facilities. G. L. c. 183A, Section 11 (d).” Johnson v. Keith, 368 Mass. 316, 319 (1975) (emphasis added). The rule at issue purported “to regulate the keeping of animals not only in common areas but also ‘in any Unit.’ Thus as an administrative rule or regulation [it] undertakes to regulate conduct in individual units without statutory authorization.” Id.
The Johnson Court made a key distinction between by-laws, on the one hand, and rules and regulations, on the other. Although the condominium trustees argued that the rule was or should be treated as a by-law, the Court disagreed, in part because the procedures set forth in the by-laws for adopting by-laws had not been followed.
“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (d) The method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.” G. L. c. 183A, § 11 (d).
“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (e) Such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.” G. L. c. 183A, § 11 (e).
The Johnson Court cited both of these statutes, and they should be instructive on the need for a condominium board to follow the by-laws themselves when adopting a new by-law or rule or regulation.
In another case, which also involved a rule concerning the keeping of a pet in a unit, the Court interpreted G. L. c. 183, § 11 (d), as meaning that, “rules and regulations may only apply to common areas of the building and not to individual units.” Trustees of the Beacon on the Charles Condominium Trust v. Adler, Suffolk Superior Court Civil Action No. SUCV2010-00793.
Adler underscores the need to analyze whether by-laws or rules and regulations which purport to restrict conduct within a unit have been unambiguously incorporated into the by-laws, and also that a condominium that seeks to amend its by-laws and rules should follow the proper procedure. The decision notes that: “Mere statements of incorporation of rules and regulations are not sufficiently unambiguous.” That particular condominium’s by-laws required that a by-law amendment required approval of at least a 75% beneficial interest in the trust, and that rules and regulations could be amended by the trustees.
In Noble v. Murphy, 34 Mass. App. Ct. 452 (1993), a condominium trust filed suit against unit owners to compel the removal of two dogs from a unit. An actual by-law, not just a rule, banned all pets from units and common areas. The unit owners counterclaimed and challenged the validity of the pet restriction. The Court ordered the removal of the dogs. In analyzing the by-law, the Noble Court noted that, “the most common standard of review of condominium use restrictions is equitable reasonableness.” See Noble v. Murphy, 34 Mass. App. Ct. 452, 457 (1993).
“[T]he test is reasonableness. If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof.” Id. The Noble Court highlighted that a condominium has authority to act concerning matters “that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” See id.
In Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002), a former school building was converted into a 71-unit residential condominium. The first floor of the building was a unit which was operated by the town of Lexington as a senior center. On various occasions, when large numbers of people visited the senior center, there were not enough available parking spaces for the residential unit owners. To deal with this problem, the condominium adopted a rule setting aside parking spots for unit owners only. The Court adopted the reasonableness standard and held that where the “parking rule restricts use of the common area parking lot, not use of units . . . the Trustees did not act outside their authority by enforcing the parking rule without first causing it to be incorporated into the Master Deed or By-laws.” See Trustees of Muzzey High Condominium Trust v. Lexington, Middlesex Superior Court Civil Action No. MICV1999-5682 (Neel, J.) (June 6, 2002).
In Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530 (1989), a master deed restriction provided that each of the units were intended to be solely for residential dwelling purposes. The condominium trust sought to enjoin unit owners who had been operating a family day care in their unit. Where the master deed specified that units could be used “solely” for residential purposes, the Court stated that the condominium trust was entitled to prevent the operation of a family day care in a residential unit. See Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530, 535 (1989).
In Franklin v. Spadafora, 388 Mass. 764 (1983), a by-law limiting to two the number of units which may be owned by any one person was not an unreasonable restraint on alienation, and did not deny the unit owner equal protection of the laws or due process of law. The Franklin Court held: “If a by-law amendment serves a legitimate purpose, and if the means the condominium association adopted are rationally related to the achievement of that purpose, the amendment will withstand constitutional challenge.” Franklin v. Spadafora, 388 Mass. 764, 774 (1983). The Court noted that: “Reasonable restrictions concerning use, occupancy, and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.” Id. at 772.
In Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728 (2011), held that while rules are reviewed for “equitable reasonableness”, “such regulations are subject to invalidation if they violate a right guaranteed by ‘any fundamental public policy or constitutional provision.’” See Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass. App. Ct. 728, 730 (2011), quoting from Noble, 34 Mass. App. Ct. at 760.
The Preu Court held that the First Amendment to the United States Constitution applies to a claim that a unit owner’s speech and expressive conduct constitutes a violation of “‘the requirements of the master deed, trust, by-laws, restrictions, rules or regulations [of the condominium], or . . . misconduct’ within the meaning of G. L. c. 183A, § 6.” See Preu, 80 Mass. App. Ct. at 728.
In Preu, the unit owner placed dog feces in a common area, placed a fan in a common area, wedged open fire doors that should have been closed, and closed doors that should have been open. The Court determined that this conduct violated various by-laws and rules of the condominium, and constituted misconduct.
Additionally, the unit owner also had posted signs in the trash area regarding the cleanliness of the common areas, and left a note on a neighbor’s door. A superior court judge ruled that these forms of communication were pure speech, conduct that was protected by the First Amendment, and if a condominium by-law were read to prohibit this conduct, it was not “equitably reasonable.”
The Court noted that, “a condominium association does not have as free a hand in restricting the speech of unit owners in the common areas in which those owners share an undivided property interest as another property owner might in dealing with a stranger on his or her property.” See Preu, 80 Mass. App. Ct. at 732.
About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court. He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.