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Legalease
Legalease, Lawyer
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Experience:  15 years exp all aspects of general law
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I live in a townhouse community. I installed replacement windows

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I live in a townhouse community. I installed replacement windows in June 2012. Now I am selling my townhouse, the association is notifying me that one window needs to be replaced because it is a double hung window and not a slider window like the original. They will not issue a clean 6D without replacement. I did not get board approval for replacement but called office and the woman said I did not need to do anything formal. I was a aware that the window was different than the original but at least 6 other units have this type of window. My issue is that I was never notified the window was incorrect and my neighbor next door sold in 2010 with 6 incorrect windows. After talking with a board member about a year ago they are starting to enforce the rule and you must replace windows prior to selling. I think they should be enforcing rules at time of installment of the window. If there were not so many incorrect windows I would not have installed a double hung and would have used the slider window. Do I have a case about association mismanagement. Is there any association laws that they should be enforcing rules at time of installment? I am thinking about taking them to small claims for cost of the window $600, however, I hesitate because they may counter sue me for cost of their attorney if I lose. Thank you

Hello there

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I am located in and practice in Massachusetts. MGL ch 183A is the condominium statutes and the law basically permits a condo association or an HOA association to develop and adopt their own rules and regulations for the running of the association -- so there are no specific laws that you can refer to regarding the installation of any remodeling items in this situation or the fact that they have been using delayed and selective enforcement up until now. Under these circumstances you are correct in being upset at the selective and late attempts to enforce the rules and regulations but the chances of winning in a small claims action will depend upon what the rules documents actually state. If, pursuant to the documents, you were not required to get approval to replace the windows at the time of the installation and there is nothing in the rules that states that all windows replaced must be exactly what was in the opening before the replacement, then you will have a case against them in small claims court. However, if the rules give them the right to have approval over any improvements made to your unit (whether or not the windows are mentioned specifically) then you will not prevail in the small claims case even though it is understandably upsetting that they have chosen this particular time to actually start enforcing the rules. You see, they have the right to enforce the rules or to not enforce the rules and the only way that you would really have a case against them for failing to enforce against some owners in the past and now requiring the enforcement is if you can show that they are discriminating against you due to your race, gender, age (over 40). religion, disability, or sexual orientation -- if you are unable to show any discriminatory intent for any of these items then you will most likely not prevail in a small claims action based upon the selective enforcement argument alone because these condo and HOA associations change management and board members quite frequently and the failure to enforce against recent owners who have sold is probably more a function of lazy management than any attempt to single you out directly - and they do have the right to whip themselves into shape and start enforcing the rules at any time of the existence of the association.

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So, the botXXXXX XXXXXne is that if the rules do not require an inspection or approval prior to changing out windows or performing any remodeling, then they have no real right to pursue you for this window on purely aesthetic reasons. But, if they had that right to begin with and you either did not comply or they did not enforce (or both) then a small claims court in MA would not reimburse you for the replacement of the window.

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MARY

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