Ask Atty. George: How Much Power Do Boards Of Directors Have In Setting Rules?
Clients often ask whether their Condominium can adopt and enforce rules that affect how unit owners behave in the common elements and even in their own unit.
Section 47-244(a)(1) of the Connecticut Common Interest Ownership Act (CIOA) gives the Unit Owners Association the power to adopt and amend rules and regulations. And of course the Board of Directors can act on the Association’s behalf and adopt rules. CIOA explicitly authorizes rules that affect the use of residential units. However the law also imposes certain limitations on rules that affect the use of, or behavior in residential condominium units.
Specifically, CGS 47-261b(f) allows associations to adopt rules that affect the use of, or behavior in, units that may be used for residential purposes, only to:
1. Implement a provision of the Declaration;
2. Regulate any behavior in, or occupancy of, a unit which violates the Declaration or adversely affects the use and enjoyment of other units or the common elements by other unit owners; or
3. Restrict the leasing of residential units to the extent those rules are reasonably designed to meet underwriting requirements of institutional lenders that regularly make loans secured by first mortgages on units in common interest communities or regularly purchase those mortgages, provided no such restriction shall be enforceable unless notice is recorded on the land records of each town in which any part of the common interest community is located. This notice must be indexed by the town clerk in the grantor index of such land records in the name of the association.
Thus, unit owners must carefully examine the Declaration to determine whether and to what extent the Declaration regulates the behavior of unit owners in their own units. As noted above, even if the Declaration is silent with respect to regulating a certain behavior, CIOA gives associations the power to regulate behavior that “adversely affects the use and enjoyment of other units or the common elements by other unit owners. The burden is on the Association to demonstrate, and if challenged in court, to prove that the behavior that the rule regulates in fact adversely affects other unit owners.
The law also requires that each rule of the association must be reasonable (CGS 47-261b(h)). Thus even if the Association has the legal authority to regulate a certain type of behavior, the regulation must be reasonable.
How can a unit owner determine if a rule is “reasonable” and know if he or she should challenge it? One of my law professors used to tell a story that illustrates the problem. Three umpires are talking about their jobs one night. The subject of how they each call balls and strikes comes up. The first umpire says with conviction- “I call them the way I see them!” The second umpire says I can do you one better than that, “I call them the way they are!” The third umpire who is a little older and more philosophical than the first two then says, I know what you are each saying but “They aren’t anything until I call them.”
Until a court actually decides whether a particular rule is reasonable it is impossible to predict with 100% certainty whether a rule is actually “reasonable.” However it seems likely that rules that are rationally related to preventing harm to the safety, well being, or enjoyment of other unit owners has a better chance of being approved by a court.
For example, a court seems far more likely to uphold a cigarette smoking prohibition in units if the association can demonstrate that the smoke and or smell somehow gets into other units of common hallways. On the other hand the association might have a much more difficult case if it tried to ban unit owners from watching violent or sexually explicit material in their unit.
And don’t forget, if a Board adopts a rule you do not approve of, and you can’t get the Board to change its mind, you can always take advantage of your democratic rights as a unit owner to try to get enough support from other unit owners to call a special meeting of the Association of Unit Owners to get the rule repealed or amended, or to remove some or all board members and to replace them with new members who share your view on the rule.
Attorney George Coppolo of Hartford is a member of the Connecticut Condo Owners Coalition’s board of advisers.