Properly Written – and Enforced – House Rules Can Keep Your Building From Becoming a Living Hell
Feb. 2, 2016 — Today’s New York Post carries a story about a unit owner in a luxury Upper East Side condo who has sued his upstairs neighbors for allowing their kids to play floor hockey in the hallway, sometimes as early at 6:30 in the morning. The games produce “sounds of jumping up and down...banging, thumping, running, heavy footsteps and commotion.” As for sleeping past 7 a.m. on weekends? “Forget it,” the lawsuit says.
What we have here is a failure of the upstairs resident to obey the house rules – and a failure by the board to enforce those rules.
Properly written – and firmly, fairly enforced – house rules can determine whether your building is a bit of heaven or a living hell. Rules on noise, smoking, pets, enforcement techniques and many other issues are some of the most important documents in any co-op or condo. But do you know what a house rule is? We’ll spend the next few days answering some of the most frequently asked questions about this misunderstood topic.
What’s the difference between house rules and governing documents?
In general terms, the governing documents (the proprietary lease, bylaws, and certificate of incorporation in cooperatives; the declaration and bylaws in condominiums) tell you what the board can do and how far it can go in the actions it takes. The house rules are directives from the board regulating the residents’ use of apartments and common areas. This includes quality of life and safety issues; policies for sublets and rentals, apartment alterations, and pets; and move-in/move-out procedures.
“The proprietary lease contains all the substantive rights of a shareholder. It sets the rules by which he lives,” says attorney James Samson, a partner in Samson, Fink & Dubow. “For example, if the proprietary lease says no pets without the board’s consent, the board can pass a house rule that spells out what that means, when they’ll consent, and when no consent is required.”
Understandably, because they set up the specifics of day-to-day living that might change very quickly, house rules can be amended by a simple board majority. Since the governing documents deal with broader, big-picture issues, they are harder to change, usually requiring a super-majority, typically two-thirds or three-fourths of the shareholders.
How should house rules be phrased to keep people from taking advantage of loopholes?
One co-op shareholder reports that her board had trouble with a house rule that was overly polite. “Whenever possible,” the rule said, “residents should try to use the freight elevator for pets” (emphasis added). This sort of tentative phrasing is calling out for crime and no punishment. A rule-breaker can say, “It was just not possible in this instance to use the freight elevator.” The phrases “whenever possible” and “should try” are namby-pamby.
“If you use the phrase ‘should try’ instead of ‘shall not,’ someone can slip under the house rule because it almost turns into an advisory kind of a rule as opposed to a mandated rule,” explains attorney Peter Livingston, partner in Rosen, Livingston & Cholst.
Specific language will keep people from slipping under the rules. Be fair, but be firm.