Q. Can you discuss the authority of a condominium board of directors to take actions within that association? I am on the board of directors of our condominium association and often we have disputes as to what the board can and cannot do.
A. One of the most difficult questions affecting condominium life revolves around the issue of what authority the board of directors has in governing the condominium association. The first step in answering this issue is to look to the power source. Various levels of authority should be reviewed. The ultimate authority is the condominium law in your particular state or jurisdiction. Each Washington metropolitan area jurisdiction has different condominium laws.
The second level of authority (power source) is the condominium documents themselves. Again, there is a priority to be considered. The recorded declaration takes precedence over anything but the condominium statute. If the declaration is silent, you have to look to the bylaws of the association.
Finally, if the board of directors has promulgated rules and regulations, then they are the governing rules for the association to the extent they do not conflict with the statute, the declaration or the bylaws.
Having said this, you probably still are confused. Statutes, declarations and bylaws do not always answer the immediate question. Issues often are not spelled out in the various documents and statutes affecting the condominium. Nevertheless, a board of directors that wants to do a good job, and is required to govern its association, needs specific guidance.
State courts have attempted to give some help to boards of directors. Generally speaking, the courts have ruled that directors of a condominium association have the same rights and responsibilities as directors of any corporation. They have to exercise good business judgment, and as long as their judgment makes sense and is reasonable under the circumstances, the courts will uphold the authority of the board of directors.
Indeed, in a famous case in Florida a couple of years ago, the high court there held that the board of directors has to be reasonable where the bylaws are silent, but if the bylaws give certain authority to the board of directors, the board may even be a little unreasonable.
You have to sit back and analyze the situation. Are you, as a member of the board of directors, taking a reasonable approach in governing your association? You cannot be arbitrary; you cannot selectively enforce your rules and regulations. But you also cannot be afraid to act -- where action clearly is required.
Just last week, the D.C. Court of Appeals -- the highest court in the District -- handed down an opinion that should be considered by everyone involved in condominium living. In a case entitled Ochs v. L'Enfant Trust and West End Condominium Association, the court upheld the authority of the board of directors to grant an historic conservation easement in its building to L'Enfant Trust. The court looked at the D.C. law, which specifically permitted the board of directors to grant easements, and determined that it was not necessary for the board to seek unit owner approval. The court said, "Since the board of directors has the statutory authority . . . to grant the conservation easement without unit owner approval, it is of no significance that an insufficient number of owners' votes may have been properly cast." In the West End case, the court record indicated that two-thirds of the unit owners ultimately did approve the easement conveyance.
The message from this case is clear: Look carefully at your state law and at your condominium documents. If those documents give the board certain authority, there should be no question whatsoever about the right of the board to take the action. Indeed, as the courts have held, you can "even be a little unreasonable."
On the other hand, if the documents and the state law are silent on the issue, you must be reasonable. Before you take any action where the documents do not give you that authority, you not only should get a written opinion from your association lawyer, but also should hold a hearing and ask all of the interested unit owners for their comments. At the very least, let the unit owners know of your proposed actions, in advance and in writing. Under certain conditions and in some jurisdictions, you actually may be required under law to hold a formal hearing before that action can be taken.