Bruce A. Cholst and Mary L. Kosmark in Board Operations on July 10, 2012
Conversely, with condominium ownership, a condo board lacks legal standing to evict unit-owners no matter how offensive their misconduct may be.
To be sure, condo boards are not completely without legal remedy. The Condominium Act authorizes the use of injunctions to enforce rules. Moreover, most condominium bylaws authorize fines against unit-owners who violate rules and regulations.
However, as a practical matter, judges are loath to issue injunctions for violation of rules, perceiving such infractions to be petty annoyances, and defiant unit-owners tend to ignore fines as there is no immediate consequence. Without a reliably effective enforcement remedy such as eviction, condo boards are ill-equipped to deal with difficult unit-owners.
Our proposed remedy borrows from the Pullman concept. Basically, the proposal envisions an amendment to condo bylaws compelling a unit-owner's sale of his apartment(s) to the board of managers or someone of its choice for fair market value as determined by a panel of appraisers (less the aggregate of all liens and judgments of record against the owner, which would be paid by the purchaser to clear title).
This would occur only after a finding by supermajority vote of both the board and the unit-owners that his occupancy or that of his guests or tenants, repeated after written notice, is "objectionable."
Once title to the affected unit(s) is obtained in this fashion, the board or its selected purchaser would have standing to evict to obtain legal possession. This bylaw contains an attorney's fee provision so that the board's expenses for successful enforcement action would be recoverable.
Doing Due Process
Due process considerations were taken into account when we created the proposed remedy. Under this bylaw amendment, the objectionable conduct provision is not triggered unless and until the unit-owner has repeated his offense after having received prior written notice of its intolerable nature. The unit-owner is afforded an opportunity to attend each meeting with counsel and present evidence on his own behalf before the vote is taken.
He is also permitted to designate one member of the three-person team of appraisers who will determine fair market value, the other being selected by the board and the third (potential "tie-breaker") being jointly appointed by the other appraisers. Appraisal costs are borne by the board of managers whose choice it was to initiate the process.
User Sparingly or Not at All
This remedy is clearly not appropriate for every objectionable conduct situation in every condominium. It is a heavy hammer and therefore should not be used to punish trivial offenses. Legal and other fees can be costly, it could impact apartments' marketability and it could prove politically explosive within the community.
Notwithstanding these considerations, the concept offers condo boards a potent option for addressing serious situations for which they are currently ill-equipped. Even if this weapon is not actually used, the mere presence of such a sword in its arsenal might well help a condo board deter objectionable conduct.
Bruce A. Cholst and Mary L. Kosmark are partners at Rosen Livingston & Cholst, LLP. Elliot J. Coz, an associate at the firm, assisted with the preparation of this article.
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