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Illegal rental has association wondering what options it has

Dear Benny: Our community association does not allow rentals unless the owner can demonstrate a hardship.

A unit owner has apparently rented his unit without board approval. What are our options? Can the board fine the owner and start eviction procedures? –Elliot

Dear Elliot: The authority of a board of directors is found in two places: first, your state law on community associations and, second, in the legal documents of your community. You and/or an attorney should read those documents carefully to determine what rights your board has.

Typically, before a board can fine an owner, it must hold a hearing. This is not a formal hearing — such as in a court of law — but an informal one. The board, or management, will send a notice of a potential infraction to the unit owner and tell him/her that if there is disagreement, or if the allegation is incorrect, the unit owner has the right to a hearing before the board.

If the board determines that the unit owner has violated the rules and regulations of the association, then the board — again, depending on any restrictions contained in your legal documents — can fine the unit owner on a day-to-day basis for every day that the violation continues.

Can the board evict the tenant? That answer depends on two things:

First, does your state landlord-tenant laws permit such evictions? How difficult and how favorable are your laws for tenants?

Second, does the association have any relationship with the tenant? Has the tenant signed any documentation agreeing to be bound by the association legal documents and giving the association standing (i.e., the right to take the tenant to court if the tenant is violating the rules)?

Typically, unless the tenant signs some kind of addendum to the lease stating that the tenant has read the rules and regulations and agrees to be bound by them, the association has no right to go after the tenant. We lawyers call this “lack of privity.” That does not mean, however, that the association has no rights against the owner. Clearly, there is privity between the association and all unit owners.

My preference: If the owner has, in fact, violated the association rules, the board should fine him/her. But the board should not get involved in a landlord-tenant eviction.

Dear Benny: I know you usually deal with homeowner issues, but I hope you can at least give me an idea as to the feasibility of my proposal.

I live in a church-owned, government-subsidized, senior housing building.

Many residents smoke, but I don’t. I share a common bathroom wall and fan exhaust with my next-door neighbor, a smoker.

Smoke comes into my bathroom and apartment. I have an ionizer, but it’s not much help. Visitors have asked me if I had started smoking again. Other smokers will open their doors to allow smoke to escape into the halls, rather than open their windows.

I want to know if it is possible to turn the building into a no-smoking facility by having only nonsmokers admitted in the future. I love my building, but I hate the thought of having to move because of this problem. –Dolores

Dear Dolores: You used the magic words: “government subsidized.”

My suggestion is that you — and as many other nonsmokers in your building — contact the head of your housing complex and complain.

There is no question that smoking is a health hazard, and many governments and businesses prohibit smoking except in specially designated areas.

If you do not get any satisfaction from the head of your complex, I would start a letter-writing campaign.

Send letters to your federal and state senators and congressmen/congresswomen. Send letters to your state and local health departments. Send letters to your state attorney general. Copy the head of the housing complex on all letters.

While I cannot obviously guarantee success, the fact that your housing complex is government-subsidized may cause a change.

I doubt that the head of your building wants to take a chance that the government subsidy will end.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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