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KASS: Condo board wants to limit rentals

DEAR BENNY: I never thought I would be writing, however I am dealing with an over-zealous condo board president who recently was elected to our board.

My wife and I own a condo (not our primary residence) and have an occasional renter to help offset some college expenses for our kids. The new president and board have updated the bylaws to limit rentals, including allowing only six rentals per year and preventing units from renting to more than four adults.

While it is not spelled out in the bylaws, at least that I could find, the new president is trying to enforce the following as well:

*Limiting rentals to a minimum of 30 days (he doesn’t want weekly rentals).

*Limiting to only four occupants per units, including children.

*Preventing guests from having an overnight guest – I’m not sure if “guest” refers to renters or if I let someone borrow my unit, say, my sister.

My questions: Can the condo board make such restrictions, if spelled out in the bylaws? And what if they are not in the bylaws?

I received a “final notice,” even though I never received any other correspondence from the condo board, that my prior rental had five people in my unit. It was my renter, his wife, their adult daughter and his 2 grandchildren, ages 13 and 17. – Don

DEAR DON: Condominium boards of directors can change the rules, but they cannot unilaterally amend your bylaws. Typically, it takes a supermajority – 66 2/3 percent or even 75 percent – of the entire membership to change the bylaws or the declaration.

Your first question: Have the bylaws been properly amended? You are a unit owner and should have been notified of proposed amendments. If they were not validly enacted, you can challenge them in court. Or better yet, ignore the violation notices and let the condo take you to court, at which time you will present your case that the amendments were not properly enacted.

Let’s look at condo law 101: If there is something in the bylaws, the board has fairly broad powers. For example, if the bylaws allow pets, the board can enact rules as to how the pets can be treated on the common elements. But if the bylaws prohibit pets, the board cannot do anything other than make sure that unit owners do not have pets.

Rental in community associations is a hot topic, especially since the secondary mortgage market – in determining whether to approve a condo purchase or refinance loan — has restrictions on the number of investor units that can be in the complex.

Regarding the 30-day requirement, are you sure this is not a requirement in your bylaws? From my experience, other than beach-area condominiums, most associations have restrictions that are even stricter; many documents state that you cannot rent for less than six months or even one year.

If there is no 30-day restriction in the bylaws, then the president or the board does not have the authority to impose that requirement.

Bottom line: Are you the only owner who is unhappy with the board? I understand you are an absentee landlord, but it is your investment and you should attend board and annual meetings. If there are others who share your concerns, then I would mount a campaign to “throw the rascals out.”

However, from my experience, a large majority of resident owners support restrictions on leasing. Tenants, they say, have no “skin in the game” and thus don’t concern themselves with the many aspects of community living.

Personally, I cannot make that general statement; I have found that many tenants are better “owners” than are the unit owners.

DEAR BENNY: As a former city dweller now in a rural area with well water, I read your recent article and want to get you some information on my personal experience as a resident with well water and as a real estate agent for over 20 years.

I had a lot learn when I bought a summer home in the suburbs. My understanding is that riparian rights only apply to beachfront property and how far your property rights go into the water for a pier, etc. As far as a water table underground for a well, things are much different and should not affect the existing wells of neighbors. I would suggest calling a septic/well inspector in their area to get the facts. They may very well be in an entirely different table even if they’re right next door. – Marylu

DEAR MARYLU: Thanks for writing. As I wrote earlier, I am a city boy and never fully understood riparian rights. Thanks for the explanation.

Benny Kass is a practicing attorney in Washington, D.C. and in Maryland. He is not providing specific legal or financial advice to any reader. He wants readers to e-mail him, but cannot guarantee a personal response. He can be reached at: mailbag@kmklawyers.com.

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