If a condominium owner regularly plays loud music, rolls golf balls across an uncarpeted floor, otherwise disturbs other residents or violates association rules, the board’s response is clear: Notify the owner that he or she is violating the rules and fine him/her if the violations continue. But what if the annoying resident is a tenant, not an owner?
The response isn’t quite as straightforward. The board has no direct relationship with the tenant, no authority to enforce the association’s rules against him, and certainly no authority to evict him, unless the governing documents specifically grant that authority, which most do not. The board’s relationship is with the owner of the unit, who is the tenant’s landlord, so any actions the board takes should start there.
Most condominium documents have provisions stating that owners are responsible for ensuring that their guests follow association rules. Even if the documents are silent, the Massachusetts condominium statute (Chapter 183A) establishes that obligation and goes even further, specifying that owners will be responsible for any costs the association incurs as a result of the bad behavior of their “guests family members, tenants or invitees.”
The board can’t fine the tenant, but it can fine the owner, who has an obligation to ensure that his tenants obey association rules. Fines are the board’s most effective enforcement weapon. If you make it sufficiently expensive for landlords to retain bad tenants, they will replace them with good ones – eventually.
No Quick Fix
Eventually is not a word boards and residents want to hear when they are being annoyed, inconvenienced or infuriated by a neighbor. Unfortunately, in many cases there may not be a single magic legal bullet that will resolve the problem quickly, but there are strategies that can resolve it successfully. A personal touch can actually work in some cases and it is always worth trying.
We have also found it can be helpful to have a constable deliver the notice as well. This does not have any legal effect but it does tend to attract the attention of owners, who probably are not used to receiving correspondence in this manner. The letter should detail the violations and include specific owner complaints, police reports (if any) and other information documenting the problem.
Fining the owner is also a tool to use to escalate the matter and notice of same should be sent in writing. The violation notice should threaten further legal action if the owner doesn’t resolve the problem and they should point out that under the Massachusetts condominium statute, the owner will be responsible for the association’s courts costs and fees if legal action is required. That threat will usually bring a response if the fines alone aren’t enough.
Initiating litigation is the most aggressive action for the board to undertake. If the violations continue and the owner refuses to evict the tenant, the board can ask a judge to order him or her to do so. If you are dealing with an emergency situation – a threat to the health or safety of owners or to association property, the board may ask a court to intervene directly and issue an immediate order.
Create a Paper Record
With the prospect of an eventual eviction – initiated by the landlord or the court – in mind, boards should carefully document the complaints against the tenant and the responses to them. All violations, police reports and tenant complaints should be noted and sent to the landlord along with the violation notices. A stack of 15 police reports detailing complaints to which they have responded should persuade the landlord that the problem is serious; they will also help persuade a judge that action is required.
Owners are often reluctant to call the police or to submit written complaints to the board, but this written record is essential. Owners and board members need to understand that if the dispute ends up in court, the complaints can’t be anonymous. Someone will have to sign them and some residents may have to testify. A manager’s second-hand testimony about owners’ complaints won’t be enough to support the association’s argument that action is required.
Boards dealing with absentee landlords and their problematic tenants often have a number of related questions:
Should owners approve a bylaw amendment giving boards the authority to evict a bad tenant? Some governing documents have this language and its appeal is understandable. But the bylaw may not be enforceable if challenged. At best, it will be confusing to judges, who won’t understand how the association could evict a tenant from a unit the association doesn’t own. So you may end up fighting over whether the board has the authority to evict the tenant before you get to the underlying question of whether eviction is justified. Going through the landlord will be more direct, less subject to challenge and probably faster in the end.
Should boards pre-screen an owner’s tenants? Definitely not. Among other problems, this risks charges of discrimination from tenants the board rejects and from landlords, who may claim that the board is applying different standards to their tenants than were applied to others. Also, if a tenant the board accepts commits a crime or injures a resident, the board will almost certainly be sued for failing to exercise due care in the screening process. That said, the board can and should reserve the right to block the renewal of a lease with a troublesome tenant. This provides some limited leverage with the landlord, who may not necessarily comply, but who may think twice before renewing the lease.
Should boards dictate the provisions of the lease? While the lease is between the landlord and the tenant, boards should require landlords to have a lease and the lease should require tenants to obey association rules and state clearly that violating them will constitute a material breach.
Should boards establish different rules for tenants? Some condominium boards think that because tenants have less of a stake in the community, they will be less responsible than owners and so should not enjoy the same privileges. But creating two classes of residents may be subject to challenge. It may also invite discrimination suits and may not achieve the desired results any way.
The arguments against discriminating (even legally) against tenants are philosophical as well as legal.
If you treat tenants like second-class citizens, less responsible and less desirable than owners, they may be more likely to act that way. If you make them feel welcome– part of the community rather than apart from it – they are more likely to be ‘good’ tenants rather than ‘bad’ ones.
If you any questions concerning problem occupants, please contact Mark Einhorn directly at meinhorn@meeb.com, or any of our MEEB Attorneys at law@meeb.com.