By Rachel Zoob-Hill, Esq. and Howard Goldman, Esq.
A prudent condominium governing board should periodically review condominium documents to confirm that they meet changing needs. For example, when online platforms such as AirBnB supercharged the short-term rental industry, many condominiums faced disputes among unit owners: Who could rent out units? How often? And under what circumstances? Some trustees were unprepared to navigate these disputes, and many condominium documents were silent regarding the issue.
Sometimes condominium documents need to be amended. If your condominium finds itself similarly situated, you should know the basics: Which documents can and should be amended? What are the general procedures for making those amendments?
“Condominium Documents” – What Are They?
The Master Deed sets forth many rights and responsibilities about the condominium; critically, it specifies which parts of a condominium are individually-owned units and which are shared “common areas”. In some condominiums, there is an additional subcategory of common areas called “limited common areas” which are technically common areas reserved for the exclusive use of a particular unit owner-for example, a balcony or deck is a limited common area.
Units are usually defined as all interior space of a unit from the lower surface of finished ceilings down, wall surfaces in, and subflooring up; common areas are the interior behind the walls of unit rooms, hallways, common entryways/lobbies/mailrooms, common HVAC and plumbing systems, yards and the exterior of the building, among other things. The Master Deed can provide that limited common areas will be maintained and repaired by either the condominium association or the unit owner. The Master Deed can also define accepted uses and use restrictions regarding units and common areas.
Frequent Amendments to Condominium Documents
- Pet rules
- Smoking (all substances)
- Insurance deductibles
- Mandating H0-6 insurance
- Short-term rental restriction
- Recently, videoconferencing annual meetings and important condo business
Declaration of Trust or Bylaws
The second document that creates a condominium is the Declaration of Trust. The Declaration creates a condominium trust association, with a board of trustees or managers who govern the condominium. The Declaration sets forth, among other things, what percentage of unit owners must agree to amend Condominium Documents, with most declarations requiring a “super majority” vote on all major issues to prevent deadlock.
The Declaration also contains the rules and regulations addressing the unique needs of your particular condominium, sets forth the procedures for assessing and collecting condo fees, provides the power to start lien proceedings for nonpayment of fees and fines, and often contains an arbitration clause for dispute resolution, and sets forth the procedure for trustee elections and removal.
How Can Condominiums Make Need Changes?
Condominium amendments often become relevant and necessary when the daily living conditions of unit owners change. Take, for example, a five-unit condominium operating smoothly for the last 15 years. The unit owners have known each other for a long time and grew accustomed to each other’s idiosyncrasies. In the last year, however, the sale of one unit brought unanticipated changes. A young couple whom everyone initially adored quickly became persona non grata when the smoke and smell of marijuana frequently seeped under their exterior door into the common hallway. Over the summer the situation grew more concerning, as smoke seemed to circulate through the condominium’s central air conditioning system, directly permeating into other units’ interiors. Attempts to amicably address concerns failed, sides were drawn and the Condominium Documents were silent about any kind of smoking. What to do?
The trustees could not simply draft a new rule regarding smoking, as it concerns activity within an individual unit. This type of unit restriction required an amendment to the Declaration of Trust approved by a supermajority vote of the unit owners. In this case, the vote was easily obtained, the offensive activity ceased, and harmony again reigns.
But before an association seeks to modify its Declaration of Trust, keep in mind that amendments should regulate activity only if that activity would or is adversely affecting other unit owners. Section 11 of the Condominium Act provides that such regulation should be “designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.”
An experienced attorney should draft any amendment as an explicit, stand-alone document stating the rationale for the amendment, and also referencing the Condominium Documents. All amendments should be notarized and signed by a supermajority of unit owners and trustees, and should be timely filed with the appropriate registry of deeds.
Gathering the necessary votes to amend your Condominium Documents is often difficult – it may require knocking on unit doors, open meetings, and navigating differing opinions. But reaching consensus regarding needed changes to your communities’ rules of governance is not only necessary, but it can truly be an opportunity to connect with your neighbors, and to strengthen your community to work towards a common purpose.
The biggest hurdle to amending condominium documents is obtaining the required percentage of unit owner votes – often 67% or 75% – also known as a “supermajority” of unit owners. This is often difficult and time-consuming. If an amendment is contemplated, trustees may want to gather the unit owners and call an open trustee meeting to answer questions, discuss options and encourage consensus.
Throughout the amendment process, trustees should provide continual communication to unit owners about the rationale for the amendment long before a vote is called. Respectfully keeping unit owners in the loop can go a long way towards getting votes needed to keep the Condominium Documents up-to-date.
For example, your condo is seeking an amendment requiring all unit owners to carry H0-6 insurance. Explain to the owners why this is important: it can reduce legal fees by avoiding claims against the condominium’s policy, stabilize insurance premiums, and H0-6 is inexpensive insurance that protects against losses. Perhaps try to negotiate bulk pricing for a group of unit owners to buy insurance, and provide broker contact information. In short, make it as easy as possible for unit owners to vote yes to your amendment.