Condo & H.O.A. Law

Q.

The association passed an amendment to the declaration prohibiting smoking in any unit on Monday. I purchased my unit on Tuesday, and I ama smoker. The new amendment prohibiting smoking was not recorded in the county official records until a week after I purchased my unit. I believe I should be grandfathered in as if the amendment was not passed because the amendment was not recorded in the county official records until after I purchasedmy unit. Am I correct?

A.

When it comes to certain situations such as smoking, owners who do not vote in favor of the amendment are going to be grandfathered. Thismeans that although the association was able to obtain the minimum amount of votes required to pass an amendment prohibiting smoking, any owner who did not vote in favor of this change will continue to be allowed to smoke in their unit until there is some type of deed change to their unit, such as the sale of their unit. You are correct in that any amendment that is passed is not effective when it is actually passed; An amendment becomes effective when it is recorded in the official records of the county. Therefore, you likely would be grandfathered into the “old” declaration that did not have a prohibition on smoking.

Q.

Another smoking question: May the board of directors pass a rule that smoking in any of the common areas is prohibited without the vote of the owners?

A.

Most likely, yes. If your association’s bylaws provide a method of adopting rules and regulations concerning the use of the common elements, then yes, the board may restrict smoking in any of the common areas, including but not limited to a club house, pool area, tennis courts and catwalks.

Q.

I amcurrently renting a unit and decided with my girlfriend that she would move in with me. After a couple of weeks, the association sent me a letter stating that my girlfriend needs to be approved before living with me. We sent in the application and have not heard anything in over a month. What now?

A.

I amnot able to accurately answer you without reading the association’s governing documents. However, the governing documents need a clause stating that all guests must be approved prior to residing in the unit. Assuming this language is in the govern- ing documents, many have an approval period, such as 30 days. Many governing documents also state that if the board fails to approve or deny within so many days, then the application automatically is deemed approved. There are many things to look at when reviewing the governing documents. This is only a broad example. If you continue to be threatened, I would consult a community association attorney or at least at first send a letter to the association via certified mail return receipt requested stating that the application has been sent on the date you originally gave it to the association and that you have been waiting for an answer.