Condo buyers hit with surprise rental restrictions

Was board's last-minute amendment legal?

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DEAR BENNY: My husband and I own a condo in a seven-unit condo association. We have owned the unit since 2005. Recently, one of the unit owners asked us if we were interested in buying his unit. We made an offer and he accepted it. After the sale and purchase agreement was signed, the seller of that unit sent an email to everyone in our association that he was happy to announce that we are buying another unit in the building.

Six days later, we received a notice for a special meeting in a great rush. Three units out of seven voted against rental restrictions, but since the two townhouses owned by mother and daughter are each worth 30.5 percent nominal interest, we lost the battle.

The trustees changed the bylaws two days later, stating that no unit shall be rented for more than two years out of five, and the owner needs to live in his or her unit for three years out of five. We tried to get out of our deal, but the seller told us he would retain our 10 percent deposit. We closed on the condo and are stuck with the new bylaw.

Do you think we have a case? –Sarah

DEAR SARAH: There is a universal rule in community association law that states that owners are bound by the association documents as they currently exist and as they are legally amended from time to time.

This rule applies equally to condominiums, cooperative housing and homeowners associations.

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Note that I emphasize the word "legally." If the bylaw in your association was legally enacted by the membership, then I must tell you that you are bound by that amendment.

I have not reviewed your association’s legal documents, so I can provide only general advice. However, just from the facts you gave me, I have some questions.

1. Typically, it takes a supermajority to amend legal documents such as bylaws. And that requirement usually is 66 2/3 or even 75 percent. From what you wrote, the amendment received only 61 percent. Accordingly, you must confirm the vote and make sure it was enacted by the requisite supermajority spelled out in your legal documents;

2. Typically, most legal documents require advance notice before a bylaw can be amended. Again, I don’t know what notice is required in your documents, but clearly you did not get sufficient notice;

3. There are some court cases that suggest that in order to impose rental restrictions on condo owners, the declaration — and not just the bylaws — must be amended. The declaration has a higher priority in the hierarchy of condominium law.

4. Finally, you might have an argument that the board of directors (in your case, the trustees), by rushing to enact the amendment, were involved in tortious interference with your sales contract. This is a stretch, and your attorney should give you specific legal advice.

Bottom line: Talk with an attorney who understands and practices community association law. There may have been defects in the way that the amendment was enacted.

You should also understand that communities throughout the nation are imposing restrictions on the number of rentals that can exist in associations. Why? Because FHA, the predominant lender for condo units, has imposed stiff restrictions, and condos are attempting to comply with these FHA requirements by amending the legal documents.

DEAR BENNY: I read your article on the laws regarding a neighbor’s tree falling on one’s property. Do you know of any laws regarding a neighbor’s property with eroding beach bluffs affecting one’s own property?

I live along the Lake Michigan shore on a high bluff. Taking care of the bluff is a responsibility of all lakefront owners. Planting vegetation, blanketing the bluff with erosion control mats, and installing drain systems are among some of the techniques.

With sandy dunes, clay underneath throughout and invisible water channels, when there are extreme amounts of rain, sometimes with all the methods one does to protect his bluff, Mother Nature will sometimes take over, in the form of a bluff blowout — the bluff actually falls away leaving a gaping hole.

Most of us who are responsible then take the measures to fix this, if financially feasible. It requires bringing in tons of rock to fill the hole, covering it with sand and blanketing it with seed-infused covering. Although this method works, it can cost upwards of $20,000.

My particular situation is this: Although I have taken these measures to protect my bluff, my neighbors to the north have never done anything to their bluff. As a matter of fact, back in the early 1990s when their bluff broke away, rather than fix it they chose to move their house back closer to the street.

In the last couple of years, their bluff has seriously fallen even more, now affecting my bluff drastically (my steps down to the lake have given way due to the large blowout from these neighbors) as well as affecting other neighbors, as the bluff continues to fall down. These particular neighbors refuse to answer my calls, letters, etc., and have again chosen to ignore this problem, whether it affects their property or others. As a matter of fact, they have their house up for sale and it certainly is going to affect the potential sales.

Do you have any comments you can share with me? –Carol

DEAR CAROL: Yours is an interesting question. To get more information, I did a Web search and typed in "eroding beach bluffs." Would you believe there is an article on the Web dealing with erosion at Lake Michigan? This may be of interest to you.

Years ago, I had client who had a house in Martha’s Vineyard, and every 10-15 years he had to move his house back away from the ocean. So I assume that it is customary (at least in some areas) to just move the house back.

However, by doing so, your neighbor has impacted on your property. I suggest two approaches. First, can you get assistance from your county? It may have a plan — or even an ordinance — spelling out what steps property owners must take to preserve and protect their property and that of their neighbors. Perhaps the local county attorney can bring suit against the neighbors forcing them to take the appropriate action.

Second, retain a local attorney. A strong letter should be sent to the neighbor, basically threatening to sue if proper steps are not taken to protect your home. I consider this a "private nuisance," which may be actionable in your state. Your lawyer can guide you on the various causes of action available to you.

DEAR BENNY: I have heard that both spouses do not have to be age 62 or older in order to obtain a reverse mortgage. Can you advise? –Fred

DEAR FRED: The most common reverse mortgage is insured by the Federal Housing Authority (FHA) and is known as a Home Equity Conversion Mortgage (HECM). These are available only if everyone on title is 62 years old or older.

There are some lenders who do not go through FHA who will provide a reverse mortgage if only one spouse meets the age requirements.

However, if you are just reaching age 62 (without or without your spouse), don’t jump quickly into a reverse mortgage. Recent statistics show that as the baby boomers are "coming of age," more and more are opting for a reverse mortgage. In fact, according to the National Council on Aging, in 2006, only 6 percent of borrowers aged 62-64 obtained such a mortgage as compared to 2010 when this figure rose to 20 percent.

Why is this a concern? Keep in mind that when you die, move out for 12 months or more or sell, the entire balance — including the accrued interest — must be paid back to the lender. Of course, with most reverse mortgages, you have to pay back only up to the equity in the house.

But that’s the issue: If you get a reverse mortgage early on, interest will start accruing. Accordingly, if at a later age you need to move to a retirement home, you may have exhausted all of the equity in your home and have no additional funds.

So, unless you absolutely must get a reverse mortgage at the early age of 62, give it serious thought first.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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