Ask Atty Pat: The Legitimacy Of Adopted Amended Or Repealed Rules
A source of conflict between boards and unit owners is the enforcement of rules. The power of the Association of the enact and enforce rules in not unlimited. To be enforceable, the rules must be legally adopted and within the Association’s power.
A necessary power of the Condominium Association is the adoption and enforcement of Association rules and restrictions. The primary sources of the rule power are provided by the applicable statutes and the Condominium documents. The powers are more fully defined and limited by Court decisions.
Section 47-244 of the Common Interest Ownership Act permits the Association to adopt and amend rules, to impose fines and other penalties for the violation of rules and to litigate to enforce the rules. The power is broad one.
When the Condominium is established, the developer adopts the original rules and provides them to the unit owners and the Association. The original rules are usually general and uniform with other condominiums. As the Condominium operates, the Association necessarily amends the original rules or adopts new rules. Section 47-261b establishes the procedures for the adoption and amendment of rules. If the procedures for adopting or amending a rule are not followed, the legitimacy of the rule may be subject to challenge.
The following is an outline of the requirements of Section 47-261b. The Association’s failure to comply with any of these standards may for the basis for a challenge the legitimacy of a rule.
1. The executive board adopts, amends or repeals rules under CIOA. While conceivably it is possible for the declaration to provide that the unit owners adopt, amend or repeal the rules, the vast majority of declarations do not contain the provision. An officer acting alone can never adopt, amend or repeal a rule. An executive board vote is required.
2. The executive board may only adopt, amend or repeal a rule after it gives the unit owners notice of its intent. The notice must be given ten days before the date that the rule is intended to be adopted, amended or repealed. The notice must contain the text of the proposed amended, adopted or repealed rule, not just a summary. The notice must state the date that the board will act after considering comments from unit owners. Notices can be mailed, hand delivered, sent electronically or given by any other method that is reasonably calculated to provide notice to the unit owner. Failure to provide notice to a unit owner will make the adopted or amended rule difficult to enforce a rule against a unit owner in a court of law.
3. After the rule is adopted, amended or repealed, the Association must give all unit owners notice of its action and include a copy of the new or amended rule with the notice. If a unit owner had no notice of the new or amended rule, a court will be reluctant to enforce the rule against the unit owner.
4. The Association can not enact a rule regulating the display of the flag of the United States unless the regulation is permitted by federal law.
5. The Association can not prohibit display on a unit or the unit’s limited common element of the Connecticut flag, signs regarding candidates for public office or association offices, and signs regarding ballot questions. The Association can regulate the time, place, size number and manner of these displays.
6. The Association can not prohibit the peaceful assembly of unit owners on the common elements to consider matters related to the common interest community. The Association can regulate the time, place and manner of the assemblies.
7. The Association is limited as to the rules that it can adopt that affect the use of or behavior in units. These rules can only be adopted to implement a provision of the declaration or regulate behavior or occupancy in the unit that violates the declaration or adversely affects the use or enjoyment of other units or the common elements by other unit owners.
8. An Association can enact a rule restricting the leasing of residential units. The rule, however, have to be reasonably designed to meet underwriting requirements of institutional lenders that regularly make mortgages or purchase mortgages on units. The rule must be recorded on the land records of the town or towns in which the community is located and properly indexed in those land records before it is effective.
9. Each rule of the Association must be reasonable. “Reasonableness,” in legal terms, usually means that the rule is rationally related to a legitimate Association power.
Most courts will not require strict compliance with all of the requirements. For example, if the Board did not send notice of a new rule to all unit owners, but the complaining unit owner did receive notice, the Court will find that the unit owner had notice of the rule. Similarly, a court may find that even ra remote impact on other unit owners may be sufficient to justify a limitation on behaviors within a unit.
Pat Ayars is a Glastonbury attorney who specializes in condo issues. She is a member of the Connecticut Condo Association Advisory Committee.