Q: I am on the board of directors of a large condominium project in Maryland. We have been receiving numerous complaints that tenants in the complex who are renting their units from condominium owners are not following the rules and regulations that our board -- and previous boards -- have issued. Can you give us some advice on how to handle this leasing problem?
A: One of the most significant quesitons affecting condominiums and cooperatives alike goes to the issue of what controls, if any, can the community of homeowners impose on unit owners who rent out their condominium or cooperative unit. While the problem is not new, with the phenomenal growth of condominiums in the Washington area in recent years, more and more unit owners have decided to lease rather than sell their units if and when they leave the community.
From a conceptual point of view, if the rules and regulations of the community are being broken, it should not make a difference whether the violator is a tenant or a unit owner. There are controls and remedies built into all of the condominium documents, and you should first go to those legal instruments to determine your rights.
Specifically, most condominium bylaws provide remedies that the board of directors can take against unit owners who violate the rules. These remedies range from injunctive relief -- going to court to seek judicial assistance against the erring unit owner -- to self-help, where the board actually has the authority to enter into the condominium unit and take steps to correct or alleviate the problem. Many condominium documents insulate the board from claims of "trepass" in the event that self-help is taken.
While the board may have this self-help authority, I cannot recommend that boards of directors take this action except in extreme emergency situations. Privacy is an important concept, and regardless of authority, it bothers me when boards of directors enter into someone else's apartment.
Many modern condominium documents spell out leasing rights for unit owners. You should consult with your general counsel to determine what authority, if any, the board has to impose further restrictions on unit owners who are leasing their units.
For example, and at the very least, I recommend the following action:
Unit owners who lease their apartments should be permitted to do so if they use a lease approved by the board of directors. This lease should contain, in addition to the typical leasing provisions, requirements that the tenant will adhere to the bylaws, rules and regulations of the condominium, and furthermore in the event of breach, the board of directors as well as the unit owner has the right to bring that tenant to the appropriate landlord tenant court for eviction.
If the unit owner is leaving the community, the management company should be given the mailing address of the unit owner. It should be pointed out that if there are violations of the condominium rules, the strongest remedy available to a board of directors is to take the unit owner to court. If the condominium does not know where the unit owner currently resides, it will be difficult to communicate with that owner. In fact, it is in the best interest of the unit owner as well as the board to let management know where the unit owner lives. There are emergency situations that require the unit owners knowledge of events going on in the community. Additionally, many unit owners would like the opportunity to vote on budget matters, annual elections, and other matters affecting the condominium community.
Many condominium associations have started to impose additional assessments against unit owners who are not in fact residing in their apartment. Before any such assessment is imposed, the general counsel of the association should review those proposals, to determine whether they are consistent with applicable law as well as the condominium instruments of the community.