“I know my rights!” This is a statement association boards hear frequently from owners, usually in response to a board decision,
covenant or rule requiring something owners don’t like or prohibiting something they want to do. As it turns out, many owners don’t really know their rights. They assume rights they don’t have or they confuse rights with expectations. “I should be able” to do something is not the same as having the “right” to do it.
The rights owners have are those required by statute or by the association’s governing documents, or established by court decisions. This is a fairly small list. Owners have the undisputed right:
·
To
elect board members.
·
To
be governed by board members who fulfill their fiduciary obligation to the
association, which includes the obligation to protect, preserve and enhance the
value of property governed by the association and to act in the association’s
best interests. (The board’s fiduciary obligation is to the association as a
whole and not to individual unit owners.)
·
To
seek election to the board.
·
To
attend meetings of unit owners.
·
To
be subject to reasonable rules and regulations that are enforced fairly.
·
To
have access to the association’s governing documents and financial records as
required by state law, which details both the information to which owners are
entitled and the information to which they may not have access.
·
To
fully enjoy their homes.
· To have access to common areas and to common facilities, subject to restrictions that may be imposed by the governing documents or the board.
A Longer List
That’s about it for the undisputed rights for owners. As I noted, it’s a small list. The list of owners’ expectations – or rights they assume they have, but don’t – is much longer. The most common of these imagined rights include the right to:
· Treat my condominium unit as my castle. It isn’t. It is part of a common interest community governed by covenants and rules and regulations, which may restrict what owners can do inside their homes as well as outside of them. Common restrictions include prohibitions on smoking and rules prohibiting pets or restricting the number and types of pets allowed in the community. Boards may also restrict – or prohibit – the installation of security equipment – ring doorbells, for example – on owners’ doors. Doors are often common areas and boards can restrict what is attached to them, especially if they modify the aesthetic look of the building.
· Attend board meetings. Owners have an absolute right to attend meetings of unit owners, but they can attend board meetings only if the rules governing the meetings, which boards have the authority to establish, permit owner attendance. Open meetings are unquestionably a good practice, but they are not a legal requirement in Massachusetts. The same holds for the ability of owners to speak at meetings ─ definitely a good idea but permitted only if the board’s rules allow it and subject to restrictions on time and other conditions the rules might impose.
· Freedom of speech. Freedom of speech is broadly protected in a condominium community, but subject to some restrictions that don’t typically apply to homes that aren’t governed by homeowner associations. For example: Association rules often restrict the size and location of political signs and holiday decorations and the time during which they can be displayed. Associations can’t discriminate by allowing some decorations but prohibiting others, but they can, and some do, prohibit all holiday displays or designate an area for holiday decorations.
· Demand that the board or property manager take care of necessary repairs inside their homes. Owners are not tenants and the association is not a landlord. The association is responsible for maintaining common areas but owners are responsible for maintenance and repairs inside their homes. The association is responsible only if the problem in the unit results from a problem in the common area – a broken pipe, for example, or a leak in the building’s roof or its siding.
· Demand service from or give instructions to association vendors or employees. Their common ownership interest in the community doesn’t give owners individual rights to make decisions about its governance or about the maintenance of common areas. The association’s manager, other association employees and vendors answer only to the board.
· Treat an ‘exclusive use’ area as an extension of their home. The right to the exclusive use of an area means that only the owners have the right to use it. It does not mean they can do or build anything they want in these areas. The exclusive use of a driveway means the owner’s neighbor can’t park there; it doesn’t mean the owner can construct an in-law apartment on that space.
· Vote on the association’s budget. The board creates the association’s budget unless otherwise provided in the condominium documents or applicable state statute. Unless the governing documents allow owners to vote on it, which isn’t common in Massachusetts, they can’t.
· Approve supplemental assessments or increases in common area fees. Both fall under the board’s general authority to create the budget. The board has a fiduciary obligation to ensure that the association has the income necessary to cover its expenses. Owners may object to the assessments, but they have no right to approve or reject them, nor do they have a right to withhold those payments. Duly enacted common area fees and assessments are the equivalent of property taxes – owners can challenge them, but they must make the payments first.
· Approve high-cost expenditures. Owner approval may be required for “improvements” − the addition of a swimming pool or the construction of a clubhouse, for example ─ but not for “maintenance,” which would include the replacement of the roofs or the decks in the community. Some owners think they should be allowed to vote on these expensive projects, but the board typically has the sole authority to approve them and to levy any assessments required to finance them.
It is important to note that the rights owners have and the restrictions to which they are subject can change over time, as a result of rules adopted by the board or changes in the covenants approved by owners.
Owners’
Obligations
It is also worth noting that while owners have rights and those rights are important, they don’t exist in a vacuum. They are one side of a two-sided coin; the other side is owners’ responsibilities, which are equally important. The most important include the obligation to:
· Obey the association’s rules and regulations and, if they rent their units, ensure that their tenants also obey the rules. Condominium owners don’t relinquish all of their rights when they move into a condominium community, but they relinquish or accept limitations on some of them.
· Pay duly enacted fees and assessments. Failure to make these payments can undermine the financial health of the community.
· Maintain their units. Generally speaking, unit owners are responsible for maintaining, repairing and replacing anything within the boundaries of their units, as defined by the Master Deed. The only exception would be common elements that are located withing individual units.
·
Obtain adequate
insurance for their units. The association’s master policy
insures only common areas; a separate owners’ policy is required to insure an
owner’s personal property and components within the unit for which the owner is
responsible.
· Be informed about board decisions and issues that affect the community. The board has an obligation to inform owners, but owners also have an obligation to pay attention to the information the board provides.
· Read the governing
documents. These documents detail, among other essential
information: The board’s authority and
responsibilities, who is responsible for maintaining what, how owners can use
their homes and any restrictions on that use.
Many disputes between owners and boards arise because owners don’t
understand the “CC&Rs” (covenants, conditions and restrictions) that govern
life in a common interest ownership community.
Although some of these obligations are imposed formally by the association’s governing documents or its rules and regulations, many are not. But all are essential to the financial and social viability of a common interest community.
The operative word – “common” – conveys the
essential ways in which owners’ rights and responsibilities intersect. Owners who don’t have unit owners’ insurance
may not be able to repair their damaged units, which could affect the health,
safety and property values of other owners. The obligation of owners to
maintain their units protects the right of other owners not to be subjected to odors or pests originating in the poorly
maintained units of their neighbors. An
owner’s ‘right’ to enjoy loud music may interfere with the right of other
owners not to be disturbed by it.
The rights of condominium owners will clash when owners assert their rights without recognizing their responsibilities. The obligations owners have to the community and to each other help ensure that all owners can enjoy the rights they have and the ownership benefits to which they are entitled.
Will is a partner in the Braintree firm of Marcus
Errico Emmer & Brooks P.C. concentrating his practice on general
condominium law as well as rule and lien enforcement. Will utilizes over 15
years of condominium law experience to provide strategic advice to condominium
associations on a wide variety of legal issues related to condominiums, including:
drafting and interpretation of governing documents, lien enforcement actions,
the enforcement of rules and covenants, and condominium governance and
operational issues. Will can be
contacted at wthompson@meeb.com.
