Amending Your Bylaws
Know When It's Time
Usually, life in a condo goes on uneventfully on a day-to-day basis, with routine maintenance, elections, gardening, move-ins, move-outs and the like taking up most of its attentions.
Every once in a while, however, something comes up that points to things that have to be changed. For example, a condo may have a no-pets rule, but then, new people move in who want the board's blessing to have pets. Then, the condo board has to decide whether to change its rules and bylaws. The trouble may be, however, that it's been so long that the bylaws were changed or amended that the board doesn't know how to go about this.
To get to the answer of how to change your bylaws, we must examine how condo buildings and developments are governed in the state.
Boston-area condos are governed by Massachusetts General Law, Chapter 183, which sets the rules for condos—ownership and possessions, deeds, bylaws, profits and expenses, improvements and more.
Beyond this, the two main governing documents for condo communities are the master deed and the declaration of trust.
As far as the declaration of trust is concerned, most condos in Massachusetts are created as trusts (thus, associations have boards of trustees).
Where do bylaws come in? Attorney Stephen Marcus of Marcus, Errico, Emmer & Brooks, PC in Braintree says, "You could have just [standalone] bylaws, but more often, you have a trust with bylaws."
Another attorney, Ellen Shapiro of the law firm of Goodman and Shapiro, LLC in Dedham, concurs. In terms of hierarchy, the master deed takes precedence over the declaration of trust. Below these two and the bylaws (if separate), you have the condo's rules and regulations, Shapiro adds.
The master deed legally creates the condo, and deals with such items as the boundaries of condo units and the common area, and the rights and obligations of owners. The declaration of trust, on the other hand, creates the condo association, which then runs the condo on a day-to-day basis.
Why Change a Rule?
What are some typical reasons that a condo association suddenly decides to change its bylaws? Attorneys interviewed for this article gave a variety of reasons.
Robert Galvin of the Boston-based law firm of Davis Malm and D'Agostine, P.C., says changes could be considered when a condo's population starts to change. For example, if an association finds itself with a lot of tenants (due to condo owners renting out their units), and decides it has to enact some sort of regulations about how to deal with tenants.
Another reason might be merely that a condo might be 30 years old or so, and it finds that its bylaws are inadequate in the face of some current situations and need re-tooling. After all, says Galvin, "The Massachusetts condo law dates from 1963."
"I would say that pets and rentals [again, those tenants] seem to come up a lot," says Marcus. "The newest reason some associations decide to amend their bylaws is to not allow smoking—not even within the units. A Colorado case was upheld this last year, and you're seeing it more and more." The case, Christensen and Sauve v. Heritage Hills 1 Condominium Owners Association, took place in Jefferson County, Colorado and declared that a "condominium association may amend its declaration/master deed to prohibit smoking within units."
Shapiro sees the situation with a sociological bent: "Some typical reasons bylaws change are generally that the community changes. You may have a community where there's been a turnover of units, and a lot of young married people move in with children. Or it could be the opposite—young professionals have moved out, and empty nesters are coming in."
Different population groups have different ideas about what should be allowed, such as whether there should be pet restrictions or how many units can be held for rental investor ownership, she says.
Rosemary Macero, a principal at Macero & Associates, P.C., a boutique civil law firm in Boston, says, "You could end up with anything, depending on how forward-looking the person was who drafted the bylaws in the first place. A lot of times, you see regulations these days in regard to satellite dishes. Pets are also an issue."
One problem that contributes to the need for change, she adds, is that when the condo law was new and condos were first being developed in the state, "developers would go to a lawyer and get a set of documents, and keep using them as 'one size fits all.'" Later on, the board may realize that one size doesn't fit all, at least not for that particular development or building.
Reassessing the Bylaws
We've already mentioned that many condo associations' bylaws and rules are either outdated or no longer fit that particular condo. How often should the board (or the attorney representing that board) re-examine or reassess their bylaws?
The attorneys interviewed for this article agree that there is a gap between how often boards should re-examine their bylaws, and how of they actually do so.
"In an ideal world," says Marcus, "it would be once a year. It would be very good if it were done once every few years. We find some condos where 10 or 15 years after the rules are created, members come to me and say, 'We were looking through the documents now and want to modernize them.'"
"When I have a new condo as a client," says Galvin, "I read through the documents. I don't suggest wholesale changes, except where [the problems are] really glaring."
Shapiro says that every few years, boards should have an attorney review the bylaws to see if they need any changes to bring them into compliance with current laws.
Macero says that it's a good idea for board members to familiarize themselves with the documents when they're elected. Examining them should be done on a fairly regular basis, she says, although it doesn't have to be once a year.
Knowing When It's Time
How do board members know when to change or add a rule?
One criteria that Marcus mentions is whether a "due purpose" is being served by the rule. If you have one problem resident, you shouldn't change the rules just to deal with that particular resident. The association as a whole should be kept in mind.
Also, it's wise to have a general idea whether the new rule, after it's drafted, would pass. Otherwise, it's a waste of time and money for associations to have their attorneys draft an amendment.
Finally, says Marcus, rules should be changed if the documents need to be clarified, and if, as we've mentioned before, they need to be brought up to speed to comply with legislation that's been passed.
One example he mentioned is that of the Fair Housing Amendments Act, which was passed in 1988 and became law in 1989. This act extends the protections of the federal Civil Rights Act of 1968, which prohibits discrimination on the grounds of race, sex, color, religion or national origin, to people with disability and families with children.
So, if a condo's bylaws were drafted before this act, it would be a good idea to consider amending them to keep in compliance. Of course, since the law is now almost 20 years old, we hope that this is not a current issue for most condos.
At a Board Meeting
As far as the procedure in most buildings or associations for changing your bylaws is concerned, it, of course, has to be done at a board meeting where a quorum is present.
The type of majority vote that is necessary is not set down in state law, but should be in your governing documents. In some condos, it could be a two-thirds majority; in others, a bare 51 percent; in still others, 75 percent.
"For the most part," says Macero, "the trustees can adopt bylaws themselves. However, I think it's preferable to get the unit owners' input."
Non-Trustees and Bylaws
One more question that comes to mind in terms of bylaws: Do non-trustee residents—that is to say, tenants, have a say in any alterations, additions or revisions of their condo community's bylaws?
The answer, according to all concerned, is that tenants' are not necessarily entitled to a say—at least not according to condo documents.
"I can't think of such a situation," says Shapiro, "except if you have a tenant who's holding a proxy granted by the unit owner—perhaps someone who's lived there 10 or 15 years and the owner feels the tenant knows more about the apartment than he does."
However, that doesn't mean that tenants should never be asked their opinion when it comes to making changes. For example, if a condo is putting on a new roof, and the roof work would directly affect the tenant who's living in one of the units, the owner of that unit might ask the tenant for suggestions or whether certain aspects of the work might be a hardship. But in general, there's no such obligation to do so.
There may be some boards that take the opinions of tenants very seriously, and even solicit them. Typically, however, tenants don't have the input that owners do into the condo association's operations, for the simple reason that they don't have the same stake in the building that the owners do.
Unit owners care deeply about their living space, and it's up to the board to make decisions to keep those owners happy. If it's time for a change in your association's bylaws, be sure to consult an attorney to make any changes and get the necessary quorum to vote for an amendment. The best way to go about keeping your bylaws current is to read them closely and frequently.
Raanan Geberer is a freelance writer and editor living in New York City.