It has been far too long since my last article. I do blame the pandemic, but only because it stopped us from scheduling physical meetings days and weeks in advance to holding online meetings at a moment’s notice. Sometimes I pine for the ‘good-old-days’ of vigorous discussions with boards in person, instead of the dehumanized virtual meeting where my eye-rolls are lost on participants because my camera square is too small. Maybe someday…
This probably won’t surprise you, but there is a hierarchy of control when it comes to condominium and homeowners associations. It likely won’t come as a shock to have it pointed out that boards and owners invariably want to ignore this hierarchy and substitute their own. And sadly, this typically leads to all sorts of problems.
We appreciate that board’s can oftentimes face challenging decisions. Work is identified which needs to be done only there isn’t sufficient money left in the budget… do you move the funds from another budget category or do you bite the bullet and ask the owners for additional money? Or, can it be put off until the next budget cycle so you can avoid that conversation? This is actually an easy decision; we believe that the association has to maintain the property and the owners have to pay so lets find the money and take care of the problem. Afterall, unlike fine wine and excellent scotch, property problems never get better with age.
While the board faces difficult decisions, sometimes, I would say most times, the board has gone out of its way to create the problem which now needs to be addressed. This problem is almost universally created by the board in dealing with an owner who wants an exception to some clearly stated restriction in the Declaration. And they inevitably get here because they lose sight of the fact that there is a hierarchy of authority which must be followed in order to support a decision.
So to be clear, here is how the hierarchy works in almost all association-related situations:
- State Law
- Declaration of Covenants, Conditions and Restrictions
- Valid Easements
- Community created rules
Association’s ideally should not make rules which liberalize a document higher up in the hierarchy.
What we sadly see in practice is typically:
- Board created rules
- Community created rules
The problem with the practice is that the rules and authorizations typically granted are not generally allowed by the Declaration. And yet, the board most often doesn’t consult with their Declaration or Bylaws to see what the restriction may already look like. They treat the Declaration and Bylaws as guidelines and suggestions, instead of the legal documents they are. And yet, the board’s pretend this approach works until, well, it doesn’t.
We live in a little condominium association. Our Declaration maintains a restriction that vehicles must be parked in the assigned parking space. Each unit has been deeded, as apartment property, a one-car garage. There is no parking on the limited common element. The driveway is a limited common element. Unit owners may, subject to reasonable rules approved by the Association, park in the common element – that is, on the street.
The board is approached by an apartment owner. The owner bought one of those very large trucks and it, unsurprisingly, doesn’t fit in the assigned parking space. The owner requested a ‘variance’ for parking on the driveway from the board of directors. How should the board rule?
I see the eye-rolling. “So what?”, you say. “Our board grants this sort of variance all the time.”
Uh-huh. Based upon what authority?
A plain reading of our little Declaration makes is pretty clear that there is no parking on the limited common element. It is also pretty clear that the Association, not the board, can set reasonable rules for parking on the streets.
Nowhere is there authority for the board to create a rule to enable someone to park on the driveway. And yet, here we are with a board possibly creating a rule that establishes just such a rule; albeit a rulethat is likely without any support.
The problem is not just the ‘board created rule’ in and of itself, although it really should not be made. It is the slippery slope that the first rule created by trying to make the Declaration ‘flexible’. The next thing you know, you have garden gnomes greeting visitors in the common element landscaping and owners digging up grass to put in water features.
Again, I see the eye roll and I hear the heavy sigh. “But what is a board supposed to do when faced with this type of situation?”, you ask. “How can someone get the right to park in their driveway?”
Great questions. Let’s start with the easy one first.
In this particular case, it is not their driveway. The driveway in our little condominium association is Limited Common Element – meaning it is a common element assigned to one or more of the apartment owners but fewer than all. The apartment owner is merely assigned that driveway but it is still part of the community’s property. The only thing the owners “OWNS” is the volume of space inside the apartment – everything else is owned in undivided interest with everyone else in the condominium. Nothing outside is likely yours.
Now, as for how to get the right to park in the driveway, there would be two ways, but both require the same initial step. According to our Declaration, the Association, meaning us as apartment owners, can agree to a reasonable rule for parking. If the correct number of owners agree that parking a vehicle on the driveway (which, remember is a common element assigned to an owner for their use) then that rule may be effective; although in all honesty I think that the restriction stated in our Declaration against parking in the driveways is hard to beat by a reasonable rule. Notice though, it is the owners passing a rule for the use of their property, not the board granting a variance from the community’s covenants, conditions, and restrictions.
Ideally though, to make this stick, the owners should amend the Declaration. The rule written above is a relaxation of the Declaration, which could lead to unintended consequences, like the garden gnome invasion. It would probably be best to have the language changed in the Declaration to read something like, “Parking of vehicles is allowed on the limited common element.” Simple and straightforward. And yes, this will still cause all sorts of problems down the road. But that is a different article.
If this is an important enough issue to create a whole new bureaucracy, it is probably worth considering amending the Declaration and avoiding the paperwork and meetings. Boards already have a great deal of power and control over the Association’s liquid assets, the assessments. The Board determines, for the most part, how your money is spent on taking care of the property. Should the apartment owners grant the board even more power to make exceptions for every little request for individual use of property owned by all of us?
By the way, this isn’t to suggest that the board is helpless in this scenario. The board is constrained though, until it has the blessing of legal counsel. Perhaps there is some reason for the board to intervene. But the board should not go that way without having a clear understanding of its authority and that requires legal advice. When the board feels the urge to intervene, it should also have the urge to spend money on the lawyer. Perhaps a good “RULE” would be, No legal advice, no intervention. Just a thought.
The moral of today’s story is that the board’s and community’s rules cannot and should not take the place of Declarations and bylaws. Owner’s should make sure their Declaration does not unwittingly grant power to the board to address property decisions, such as how parking restrictions can be avoided. The board’s job is to ensure the property is maintained and strictly enforce the governing documents, not liberalize them. Allowing the board greater control will inevitably create a conflict which potentially costs your Association lots of money in legal fees battling owners. The association almost always wins but it is often a Pyrrhic victory at best.
At C.O.R.E. Services, we focus on delivering superior value to boards and owners in condominium projects. We learn your bylaws and declaration and ensure that all decisions are grounded in these documents. We help bring order to chaos and provide tools for directors and owners to share their thoughts about how they would like their community to serve them. You can find out more about C.O.R.E. and our approach on our website.