Ask Atty Pat: How Can Ct A Condo Board Now Enforce A Rule It Has Ignored?
Charles and Mary of Wallingford want to know if their condo board can outlaw Playscapes retroactively if they have looked the other way when some owners installed them.
Glastonbury condo attorney Patricia Ayers says it is a very trick question that doesn’t have a simple answer. She says the most reasonable way for the board to handle the issue is to call for a special meeting to approve new rules and regulations. The following is her analysis of the issues.
The Association has the absolute power of control over the common elements under Section 47-244 of CIOA.. Most documents contain provisions that state that the common elements can not be obstructed or that unit owners are prohibited to do anything that will increase insurance rates.
The Association had not enforced these provisions in the past and they have discretion in enforcing the document provisions. The Association can not be arbitrary and capricious and must act reasonably.
In the interests of fairness, the Association should give notice that it is beginning to enforce the documents after a period of waiver. If it is adopting a new rule, it must give the unit owners notice and an opportunity to comment before adopting the rule. The notice has to be given 10 days before the Board meeting at which the rule is to be adopted.
Backdating the rule raises the issue of “ex post facto” laws, that is, a law that makes a prior legal activity, illegal. Article I, Section 10 of the US Constitution prohibits states from passing “ex post facto” laws.
A condominium is not a state or municipal entity, so the Constitutional provision does not apply to the Association. Section 47-211 of CIOA does impose an obligation upon the Association to act in good faith.
Courts have held that when one purchases a condominium unit, one expects that the documents will be amended. Some condominiums do use “grandfather clauses,” when adopting new regulations. These clauses exempt existing conditions from the application of the new rule, sometimes permanently and sometimes for a limited time or under limited circumstances. However, unless there is a provision in the documents or in a statute that requires a grandfather clause, the Association does not have to include one and it can decide the terms of the exception. I assume that the Association chose to make the prohibition effective as of July 4, 2012 to prevent anyone from purchasing or installing a playscape while the Board is adopting the rule.