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Appeals Court Concludes That Condominium Board Does Not Have The Discretion To Modify Or Waive By-Laws On Its Own Accord

A condominium board, which believed that it was simply acting under powers plainly prescribed in its governing documents, recently lost an appellate decision after nearly two years of protracted litigation involving a pet restriction. The Appeals Court’s decision underscores the importance of having competent counsel to advise board members with respect to the interpretation of condominium documents.

The Appeals Court – in Gollon v. Caramazza, 90 Mass. App. Ct. 1108, 60 N.E.3d 1196, review denied, 476 Mass. 1105, 65 N.E.3d 661 (2016) – found that a condominium board did not have discretion to modify or waive its condominium by-laws on its own accord. The case involved a pet restriction that the board elected to simply waive when presented with a dispute between condominium neighbors that precipitated from one unit owner’s acquisition of a dog. The Appeals Court concluded that the board could not circumvent its own governing documents, which required an approval of two-thirds of the unit owners to amend the by-laws (including the pet restriction) – and thereby vacated a Superior Court decision, which had ruled that the board was under no duty to remove the dog.

The Appeals Court concluded that the board could not circumvent its own governing documents, which required an approval of two-thirds of the unit owners to amend the by-laws (including the pet restriction) – and thereby vacated a Superior Court decision, which had ruled that the board was under no duty to remove the dog.

In 1999, Alfonso Caramazza and Kathryn Link purchased a unit at the Sewall-Marshall Condominium, located in Brookline. The unit purchased by Caramazza and Link was directly below that of Roberta Gollon.

Five years after moving into their condominium unit, Caramazza and Link acquired a dog. Gollon took exception to their acquisition of a dog and complained to the condominium board – claiming that the dog barked incessantly, that the dog relieved itself in common areas, and that the dog’s dander irritated her. Gollon contended that the dog barked in a “loud and often continuous” manner that lasted “more than ten minutes at a time” and that the dog urinated in the condominium’s garden. Gollon further alleged that she began suffering allergic reactions after the arrival of the dog.

Section 5.7(a) of the condominium by-laws provides as follows:

No use may be made of any Unit except as a residence for a single family, or for no more than two persons unrelated by blood or marriage. Each Unit Owner shall maintain this Unit in good order and repair, and shall not keep pets or animals therein, except as may be permitted by the rules and regulations.

Section 3 of the condominium’s rules and regulations further provided:

No animals or reptiles of any kind shall be raised, bred, or kept in any Unit or in the Common Elements, except that dogs, cats or other household pets owned by Unit Owners at the time of purchase of their Units (but no pets acquired thereafter) not to exceed one per unit may be kept in Units, without the approval of the Board, but subject to the rules and regulations adopted by the Board, provided that they are not kept, bred or maintained for any commercial purposes; and provided further that any such pet causing or creating a nuisance or unreasonable disturbance or noise shall be permanently removed from the Property upon three (3) days’ written notice from the Board. In no event shall any dog be permitted in any portion of the Common Elements, unless carried or on a leash, or in any grass or garden plot under any circumstances; but seeing-eye dogs shall not be subject to these provisions.

Notably, section 10.1 of the by-laws provides, in pertinent part, as follows:

These By-Laws may be modified or amended by the vote of two-thirds (or if such modification or amendment affects a provision then requiring a larger percentage of approval, then such larger percentage) in interest of all Unit Owners at a meeting of the Unit Owners duly held for such purpose, or in lieu of a meeting, any amendment may be approved in writing by two-thirds in interest (or such larger required percentage) of all Unit Owners.

In response to Gollon’s complaints about the dog, the condominium board initially asked Caramazza and Link to remove the dog. The board, however, later reversed itself after determining that Caramazza and Link had taken steps to control the dog’s behavior. The board waived the pet ownership restriction rule prohibiting after-acquired pets in reliance on its power to waive rules as allowed by the by-laws.

Indeed, while a modification of the by-laws required the approval of two-thirds of the Unit Owners – as provided above – Section 2.2(e) of the by-laws provides that that the Board’s authority includes the “[a]doption, amendment and administration (including waiver) of reasonable rules and regulations covering the operation and use of the Condominium.” Section 10 of the rules and regulations additionally provides that “[a]ny consent, approval or waiver given under these Rules and Regulations may be added to, amended or repeated at any time by resolution of the Board.”

Gollon filed a complaint in the Superior Court seeking, among other things, a declaratory judgment that the board must enforce the by-laws and rules with respect to after-acquired pets, and can neither waive nor selectively enforce them. The Court (Connors, J.) allowed the board’s motion to dismiss, ruling that the board was under no duty to remove the dog.

The Appeals Court disagreed with the Trial Court’s ruling and subsequently vacated the portion of the judgment declaring that the board has no duty to order the removal of the dog. The Appeals Court found that – to the extent the last clause of section 5.7(a) of the by-laws implies that a right to keep a pet in a condominium unit – the subject by-law is a valid restraint on a unit owner’s usage of their unit under G.L. c. 183A, § 11(e). See Noble v. Murphy, 34 Mass. App. Ct. 452, 455-460 (1993). The Appeals Court concluded that “[t]he board does not have discretion to modify or waive the by-laws sua sponte; only an approval of two-thirds of the unit owners may amend the by-laws.” Therefore, the Appeals Court vacated the judge’s order on the count seeking declaratory judgment.

Critically, the Appeals Court found that Section 3 of the Condominium’s Rules and Regulations, which purports to allow unit owners to keep pets in their unit, is without statutory authorization. G.L. c. 183A, § 11(d) requires by-laws to provide a “method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.” This language permits a condominium’s rules and regulations to govern only the usage of common areas – not that of the units themselves. Johnson v. Keith, 368 Mass. 316, 318-320 (1975) (“[A]n administrative rule or regulation [that] undertakes to regulate conduct in individual units [is] without statutory authorization”).

A condominium’s governing documents prescribe the “rules of the game,” Strauss v. Oyster River Condominium Trust, 417 Mass. 442, 452 (1994) and every unit owner’s interest is subject to the limitations “set forth in the master deed and the condominium bylaws.” 39 Joy Street Condominium Association v. Board of Appeal of Boston, 426 Mass. 485, 487 (1988). A unit owner buys into a condominium with the understanding that certain restrictions will be enforced. See Noble, 34 Mass.App.Ct. at 459. For many people – such as Roberta Gollon – a restriction against pet ownership may have been a key factor for their purchasing a unit. As such, it is not surprising that the Appeals Court determined that a board could not simply skirt its governing documents and unilaterally waive a by-law.

It is understandable that the Board believed that it had the ability to waive or amend the condominium’s rules and regulations – based upon the clear language of the Condominium’s own governing documents. Indeed, this appears to be the reason that the Superior Court judge initially dismissed Roberta Gollon’s case. Unfortunately for the Board members, however, the governing documents provided them with powers to which they were not entitled under the law – namely, the ability to regulate conduct in individual units through the Condominium’s rules and regulations.

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If you have an enforcement case or need assistance in interpreting your condominium governing documents, you can email David Rogers at drogers@lawmtm.com or any of our other attorneys at Moriarty Troyer and Malloy at info@lawmtm.com.

David Rogers