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KASS: How to deal with a waiting list

Q:   In May, I was notified that the board of my condo association changed the condo rules (without amending the bylaws) to a rotational leasing slot system where it establishes a waiting list for people who want to rent their unit. The leasing slots rotate among unit owners desiring to lease their unit. Once a unit owner begins an approved lease, that unit owner is allowed to lease until the approved tenant moves out. When the tenant(s) moves out, the leasing slot is returned to the pool of available leasing slots. This obviously sucks for all the investors because it gives you no ability to plan and you’re likely going to have extended periods where you are not allowed to rent out your place.
It seems that the Board did not use sound business judgment when amending the condo rule. Also, the amendment seems to violate the DC Condominium act (42 -1903.08(a)(14A))that states: Condo associations have the “power to reasonably restrict the leasing of residential units; provided, that any restriction described under this paragraph shall not apply to a unit that is leased at the time of any action taken to restrict the leasing of residential units until the unit is subsequently occupied by the owner or ownership transfers.” It seems that this law exempts owners who leased their units at the time of the amendment (lasting until the owner moves back in or sellsthe unit).
I wanted to know if you had any thoughts. Carolle.

 

A:       I do have a number of thoughts and although this question involves District of Columbia issue where I practice law, I cannot provide legal advice.

The first thing you should do is review your condo legal documents, which are the Declaration and the Bylaws. Boards of Directors have very broad powers; typically the Bylaws state that a Board has the power and the authority to run and manage the association, consistent with applicable law and the condominium legal documents. In this connection – and without providing a legal opinion – if could be argued that the boards new policy may be in conflict with the law.

Leasing is a hot-button issue for associations all over the United States. Many mortgage lenders are reluctant to lend money when there are too many renters in the complex, or they will make a loan that is less favorable to associations where there is no surplus of renters.

 

Accordingly, in my opinion, assuming the board is not violating the law or the condo documents, they have the right to set up the leasing program..

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Q:   I am on the board of a 100 unit condo and one of our owners has been complaining that her next door neighbor is very noisy. Is this something our board should be concerned about and get involved? Tony

 

A:   Yes and no. I am sure your bylaws specifically state that owners cannot create a nuisance, and presumably noise is a nuisance. So, yes, the board should be concerned.

However, in my opinion, the complaining owner should try on her own to resolve the problem. She should first discuss her concerns with the noisy neighbor; maybe that owner is not aware that there is a disturbing noise. Next, if that does not resolve the problem, the owner should consider calling police. Of course, that would depend on the kind of noise; if it is a baby crying in the middle of the night, i would not call the police. But if the next door neighbors are constantly fighting, yelling and screaming at each other and throwing pots and pans at each other, that’s a role for the police.

And if all private “neighbor-to-neighbor” efforts fail, then the board should get involve. the board should arrange an informal hearing whereby both neighbors appear before the board (or a committee appointed by the board) to hear both sides. If after that hearing, the board believes the noise is real and that it will not stop, the board should consider issuing a fine against the noise neighbor. And the fine can be imposed on a daily basis when there is a noise complaint.

If the noise is coming from an operating system within a unit – or in a common element, the board may want to hire an accustical engineer to determine the noise level.

My law firm represents a number of condo associations and we often get noise complaints from owners. In addition to giving them the advice outlined above, I also suggest that a couple of board members visit the site to determine if there is a noise and what – if anything –can be done to resolve the matter.

I also point out to my clients that my definition of noise is my son’s definition of music. Bottom line: a board sometimes has to make a value judgment as to whether there really is a noise or is it a “figment” in the unit owner’s imagination. And if the latter, how to handle.

 

That’s why when people ask me what I do, I have to point out that I am part attorney and part a layperson psychiatrist, in addition to a columnist.

 

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