Condo and HOA boards are tasked with a great many responsibilities – including determining and promoting both the day-to-day and longer-term interests of their residents. That’s a tall order, and it’s largely achieved through the implementation of rules and regulations designed to serve those interests while prohibiting activity that could be detrimental to the community.
But what may be deemed ‘detrimental’ doesn’t always stay the same from year to year, or from one board administration to another. An association’s bylaws are superseded by the municipal, state and federal laws of the land, so sometimes forces outside of an association’s control will dictate changes that need be made to its policies. In other instances, changing culture, owner demographics, and other factors can push a board to adjust its community’s governing policies to reflect those evolving priorities.
For example, a 14-building co-op in Queens, New York several years ago lifted a ban on walking on the property’s grass. This may not sound like a particularly high-stakes move, but in New York City, space is at a premium, greenery is rare, and the ban had been in place since the property’s inception. But eventually, a younger demographic – many of whom had children and pets – overwhelmingly felt that the lawn was to be enjoyed, not just to be observed and maintained.
So what motivates a board to revisit a long-standing rule? Conversely, why might it stand its ground? How frequently do boards make the progressive choice over defending their conservative policies?
Smoking is one issue that has caused a great deal of debate in multifamily communities for decades now. Americans once smoked cigarettes at work, on planes, while pregnant, in restaurants – whenever – and then suddenly it was barred from nearly all public spaces, and most private ones too. Now with an increase in marijuana legalization, a different type of smoking is picking up Big Tobacco’s slack. Community associations frequently find themselves navigating turbulent waters when adapting rules and regulations to address the clouds of cannabis.
“Smoking definitely comes to my mind as one of the biggest topics at our communities in regard to the disturbance it can create for non-smoking residents,” says Anita Chmilarski, Owner of Linear Property Management, LLC, in Tyngsboro, Massachusetts. “Most associations have adopted a rule about the distance from a building at which a resident can smoke, but some are going so far as to consider amending their master deed to render their community completely non-smoking.
“In Massachusetts, where they’ve recently legalized marijuana state-wide, this will surely become an issue,” Chmilarski continues. “Also, where association rules allow owners to have some of their own plantings in limited common areas, we will likely see instances where marijuana is growing in areas to which underage residents would have access. Boards are already discussing whether it is prudent to amend their rules now in order to address this issue before it becomes a problem.”
Nevada, too, has legalized marijuana. According to Michael McKelleb, a partner with McKelleb Carpenter Hazlewood, a law firm based in Henderson, Nevada: “The issue is problematic. It’s causing many associations to revisit their rules due to residents who not only find [smoking pot] to be a nuisance, but offensive, when their neighbors smoke in their backyards – especially when they do so on a patio. The smell and smoke can travel to the noses of neighbors.”
Pet-related rules are another branch of regulation routinely affected by changing attitudes within a community. Increasing cultural acceptance of animals that provide either physical service or emotional support makes it much harder for an association to advocate for an outright ban on pets–as exceptions will almost certainly need to be made that can then cause headaches for a board attempting to juggle the conflicting demands of individual owners.
“There’s almost no such thing as a no-dog building anymore,” notes Andrew P. Brucker, a partner with the law firm of Montgomery McCracken Walker & Rhoads LLP in New York City. “Just due to the medical implications.”
Beatrice Lesser, a law partner with Gallet Dreyer & Berkey, LLP, also in New York, has dealt with this issue time and again. “I have urged co-op and condo clients who bring dog cases to me to change their policies regarding prohibition,” she says. “In every case, the pet owner presents a distressing picture of personal problems that were turned around by their dog ownership and gave them a reason to go on. Or that their doctor told them to get this dog, and their health improved measurably.”
Studies have shown that even people without any sort of pre-existing ailment report better quality of life from having a pet in their home. Thus, it may be well worth it for boards to consider lifting outdated pet bans – not just for the improved board-resident relations such a move can foster, but in the interest of making a real, positive impact on their neighbors’ lives.
As a younger generation of buyers moves into a building or community association and start families, the community is naturally going to change to reflect the interests of both those parents and their children. If the community had previously skewed more toward older residents, this can sometimes cause a bit of culture clash between the old and new guard. For example, common areas that were once only accessible during a fixed window of time during the day may have those hours extended due to increasing demand.
“An older population might put a closing time of, say, 9 p.m. on a playground that isn’t used much,” says Brucker. “But if there’s an influx of kids, [that might need to change]. 16-year-olds, for example, aren’t going to be happy with a basketball court curfew in the summer. They’ll want more access to the common areas, and you’ll see those rules change.”
This also applies to gyms and fitness rooms, which are notoriously loud while occupied. An older resident in a nearby unit may want to close up shop at 6 p.m., but the young professional who’s not even in the building from 8 a.m. to 8 p.m. is likely to protest. And an older demographic with minimal need at all for a gym – not to mention playground equipment – might not be as quick to prioritize upgrades and enhancements to those amenities, so the onus is on the new guard to champion those common areas. “The biggest thing we see in regard to changing demographics is that money actually gets spent to revitalize the old and unused equipment,” says Brucker. “It’s not a rewriting of a rule necessarily, but rather a signal of evolving philosophies.”
A less obvious issue related to America’s unquenchable thirst for additional entertainment options is that of the satellite dish, about which attitudes have changed significantly over the last decade-plus.
In the heyday of DirecTV during the mid-aughts, satellite television appeared to be the wave of the future. “Sometime around 10 years ago, the FCC ruled that community associations could not flat out prohibit satellite dishes, and that they had to be allowed in limited common areas” says David Barrett, President of RCM Services in Allston, Massachusetts. “This meant that they could still be prohibited [in associations] where there were no limited common areas, but other associations had to put limitations on dish installation lest residents go wild.”
Since then, streaming services like Netflix, Hulu, and others have come on the scene and changed the game. “Everyone cool (lol) is binge watching Netflix and Amazon,” jokes Scott B. Piekarsky, Managing Member of the Wyckoff, New Jersey-based law firm Piekarsky & Associates, LLC, while pointing to the very real – and somewhat ironic – trend of associations loosening their rules around satellite installations just as the increasing reliance on streaming services has sharply reduced the demand for clunky exterior dishes.
The affordability of drones has enabled those with authoritarian tendencies to turn their communities into surveillance states – and associations have had to react accordingly to protect the privacy of individual residents.
“The cost of drones has dropped significantly, and almost all of them have cameras,” notes McKelleb. “Because of this, many associations have begun to adopt policies – some with consideration of FAA rules and some without – to restrict their use, because they make it easy to spy on a neighbor’s backyard that otherwise is concealed by a block wall.”
Of course, in many instances, a board will act to avoid change and maintain the status quo for as long as possible. Mark R. Rosenbaum, a principal at the law firm of Fischel Kahn in Chicago, notes that often when boards proactively revise their rules, it’s to make them more punitive, not less.
“The most common change I see is that the board spells out in some detail the process involved in fining owners, or imposing other penalties on owners for violations of association documents,” Rosenbaum says. “Boards tend to find fining other owners distasteful, and generally hope that it won’t be necessary – and because of that, the rules governing the process have often been vestigial. But as boards have been told by courts to take their duties more seriously, and as owners have pushed the limits of ‘neighborliness,’ boards have found that they have to enforce their documents. And the more the rules spell out exactly how that process is to happen, the more boards can use that road map to make sure that the process is as bulletproof as possible, in case the matter comes up before a court.”
Even the issues discussed above that are increasingly leading to progressive change can sometimes yield the opposite. For example, Barrett notes that while it’s likely that associations will have to welcome emotional support animals, many boards are reacting to this by drafting rules that make it easier for them to take remedial action against pet owners, should Fido or Fluffy cause problems.
“Generally speaking, in New England boards want to maintain their control,” Barrett notes. “I haven’t seen many communities acting progressively, i.e., ‘Let’s just make it easier for everyone to have pets,’ or anything like that.”
And when progressive change does come, it may not be immediate. Brucker agrees that as stated previously, human beings have an inclination to resist change. “There are many people, when presented with any alteration to the status quo, will automatically be negative,” he says. “But when enough of their neighbors stand up at an annual meeting and advocate for things like park benches, or a place to put strollers, the board has to listen, or that board won’t be sitting in its seats much longer.”
Mike Odenthal is a staff writer/reporter for The Nevada Cooperator.