Amending Your Bylaws

Know When It's Time

By Raanan Geberer

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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.

Comments

an unknown user

i found this article extremely helpful and think that all trustees of condo associations should subscribe to new england condominium magazine. It is a great guide.

an unknown user

than k you for helping me jumpstart my education in condo by-laws

an unknown user

can an ammendment to a master deed /by-laws be made to a deeded parking space, resulting in the parking space being re-classified as 'common area'.

kelly lachner

i tried to refinance the condo that i own. my lender said that the condo association had a "discriminatory bylaw" and that i cannot get a government guarenteed loan (conventional). i spoke with the president of the board (who is also a retired lawyer) and she (happily) said that this is true and that they have no intention of changing this bylaw. the board has the final decision to yeah or nay a potential buyer. thus, the government will not back a loan with such bylaws. wouldn't the fair housing act mandate that these archaic bylaws be updated?

Carole Zullo

Do we need a lawyer to incorporate State HB decisions into our by-laws. can we do this as a board and how?

an unknown user

We have a unit owner that constantly interferes Is there anything that can be done?

anne

My condo association wants to make it a rule that all garage doors must be closed at all times and cars cannot be left in driveway. 1.My garage door does not close or open properly in the winter time so I am forced to leave it open and my second garage is too small for my car. Since when is this part of the condo associations right to rule when this is not a common area.

marco

can the association forbid an owner from installing hardwood floors in their unit due to the increased noise caused by walking on hardwood or sound bouncing from hardwood? I can't find this in MA law.

Pat

Are by-laws grandfathered in. I have been living with a domestic partner opposite sex) in my unit for 10 years. Can they amend by-law to read all units shall be used only by family menbers.

Jane

Are directors of cooperative unit boards governed by the same laws as condominium trustees?

mayra

Im in florida 2/2 condo, I've owned it for 4 yrs. Can the association take action on me because im a family of 6.????

Peggy

I live in an condo with a assocaiton. We have a (1) pet rule. But if we give 2 pet to a unit can they take it back later if this doesn't work out. Like pet swaste, barking,etc.

sharon

In my association, the bylaws are incorporated into the Master Deed. Can the board amend or do they need an owner vote?

mmorin1237@aol.com

Where do I find the answers to these questions? David

Sue

I purchased my condo 3 years ago at that time I was given a copy of the rules & regulations. (My neighbor also bought around the same time & was given the same rules & regulations that were given to me.) This is a small association with 12 units. The documents stated pets were acceptable. I have been on the board for the last 3 years. We got a dog 2 years after moving in. One neighbor states the rules had been ammended to exclude pets years ago. This is the only member left from the previous board he is no longer involved with the board because he had appointed himself in charge of the assoc and felt he didn't need to pay condo fees because he was "managing the assoc". He has not attended the annual condo meetings since a management co was brought on. We have had a management co for the last 7 years. The management co was not aware of any changes made to the rules and we all believed we had the most recent rules & regulations. Where do I stand with my dog? The current board has no problem with the dog.

an unknown user

I live in a 72 unit condo and we have 9 units in foreclosure. Most of these unit owners are not paying their monthly condo fees. I think they should be denied access to the club house, swimming pool, and laundry rooms. Some of these people are over 12 months behind on their monthly fees.

Kathy

Question: My condo bylaws from the early 80's say pets must be leashed. The TOWN law is that dogs must be leashed. Now, in 2010, the association has decided without a vote, to randomly fine people if it is reported they see your cat outside without a leash. My problem is 1.prove it's my cat.. 2. dont we have to vote if we're going to impose fines? and 3. can the association even decide there is a leash law for an animal when the town doesn't even have a law for that animal?

linda

I have spoken several times to the families above me with the noise level. What cab be done if the trustees or management isn't doing nothing.

an unknown user

May a condo owner who also has a 'deeded' parking space in a garage allow a family member or non-resident to park in that space?

JP

My townhouse complex has unit owned and maintained decks that were allowed to be built over common area many years ago and are pretty mmuch equal across units. one unit owner wants to replace the skirt around the base of her deck with a new material which would visualy match the others vs what currently exists. My question is would this require resident approval 0%, 51% or 100%. I don't view it as an addition related to the use of common area, I view it as maintanance to the current deck. Some believe any change to the unit owned deck still requires full approval even though not being paid for by the complex.

IH

I have had my condo in Chelmsford MA rented for a number of years. With the many changes that have occurred in my life since the purchase; my renter is moving out, a separation that caused us to have to sell our single family house, we are now thinking we may have to move in. We have an incredible 50lb Soft Coated Wheaten Terrier who we have had since birth and is now 7years old. The problem is that the condo association doesn't accept pets. They can't even visit. Giving him up would mean giving up a member of our family. How do I get these by-laws changed to accept dogs, quickly?

an unknown user

what can you do if a trustee is in violation of the rules and regulations. Also, what can be done when a trustee that owns a unit, burns the siding from grilling to close to the condo building and wants to take a piece of siding off the shed for replacement instead of reporting the damage to the master insurance company. This same trustee, has been known to give other condo owners violations for minor issues and it is the same person she gives the violations to on a regular basis.

Charlotte

We had a unit owner who pass away several years ago and now her niece lives in the apt, but her mother is the administrator of the estate. How can the board allow the daughter to become a member of the board as a proxy for her mother who is the administrator? Please answer.

Joni

Can residents in south carolina hoa community install hardwood floors in second or third floor units.? Looking for a way to keep upstairs noisy neighbors from doing this exact thing.

Kathy

Is the board for an assocation allowed to have special meetings without letting the owners of the meeting and making changes at the special meeting and than letting the owners of these changes after they are made. this is in the state of South Carolina

Elena

[I live in] such a community; where the board (5), waived their condo fees via self-management status. Now, we have a management company but (trustees), awarded themselves $250.00 stipends while raising the fees 13%. Some buildings here are over 50% owner-leased and I suspect do not pay their condo fees. Why? We have no reserves.... The management company will not give me proof of payments of any resident: including the trustees who allege they are now paying their fee....Minus their stipend... Concerned Owner

terry

I have a unit with parking space. I would like to sell the parking space. According to the By-Laws,I can't sell the parking space without the unit. I wonder if that can be changed.

The Glens Condos

We have many parking issues , and after 3 committees to propose solutions, the board has turned down our proposals..how do we oust the board members?

Norsmen

Live on L.I. can our condo board amend by laws to bring them up to speed? Same has not been addressed for past 25 years. would welcome your input on this.

CT condo owner

The answers to almost all of these questions can be found in your documents. It is your duty to read and understand them. Generic answers cannot always be given because each situation is different. If you have Board members you do not trust and believe to be acting improperly, vote them out of office. Read your state condo laws, read your association documents, volunteer to run for a Board seat. Yes, it takes a lot of time, and you will do this work for no pay or any financial reward, but you will have the satisfaction of seeing your association run properly.

Ray

Great article!!

Chelsea

Can the board amend condo documents without going to an attorney? The condo in question is in MA and its just myself and another unit.

JR

Can a Board of Trustee hold two Trustee position there are less than the required 3 condo docs say no less than three Trustees.

steve

40b condo owners pay a lot less HOA fees because of a restricted market value per state law in Massachusetts lowers their beneficial interest. However, they enjoy all they same benefits. Future assessments and reserves are also lower to 40B's. How can an existing HOA change this to be more evenly divided among ongoing expenses, future assessments and reserves?

an unknown user

Can a person serve as a trustee if he no longer owns the unit however still resides in the unit. The owner sold the unit to his son and now rents from his son nd has been a trustee for years.

Lynn

Smoke free condos seem to be new hot topic. HOA of 130 unit condo in MA sent a notice out to unit owners approx 10 plus months ago on whether to ban smoking INSIDE individual condo units, there was already smoke free policy in common area. Some unit owners called management staff inquiring about this notice, those unit owners who inquired were informed the board was just polling unit owners to get a sense of what unit owners thought as there had been a dispute between 2 neighbors, 1 smoking the other non/anti smoking. And, management staff indicated nothing would happen , they are just polling unit owners to get a sense of opinions on the topic (implied that it is not a formal vote). No other updates provided until last week with a notice that "the vote" passed and effective immediately smoking is banned inside individual units or anywhere on property. Is this legitimate or legal for HOA to change bylaws in this manner, there was no follow up communication until bylaw changed and notice sent. Would there need to be a re vote or option for unit owners to be "grandfathered" provided by HOA?


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