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Roger
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 31021
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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We have a condo rule against leasing our unit to any but

Customer Question

We have a condo rule against leasing our unit to any but immediate family.
Our condo board says that does not include nieces, nephews and cousins even though "immediate family" is not spelled out anywhere.
What can I do?
Madison, WI
Submitted: 1 year ago.
Category: Real Estate Law
Customer: replied 1 year ago.
I'm on the BOD and what to know the boards options. The unit owner has no intension to comply and is threatening a lawsuit.
Customer: replied 1 year ago.
Our condo is in Madison, Wi
Expert:  Roger replied 1 year ago.

Hi - my name is ***** ***** I'll be glad to assist.

IF there is no definition of what an "immediate family member" is in the bylaws, then you could ask the board to define what that is and have the board spread among its minutes what this term means.

Expert:  Roger replied 1 year ago.

The association should have the authority to define this term.......the board may want to look up the definition in a recognized dictionary OR make up a reasonable limitation on its own.

Expert:  Roger replied 1 year ago.

While you can't prevent someone from suing, if there's no proof that the board is misapplying the rule, it would be tough for the member to prevail.....although the suit could force the association to establish a definition of what an immediate family member is.

Customer: replied 1 year ago.
As I said, I am on the board and the board agrees that "immediate family" does not include nieces, nephews and cousins and that should be in our last minutes. Should those be distributed to all of the owners?I have looked up the term and it generally means "immediate family". Mother, Father (including in-laws), siblings and children. But any search will turn up any definition you want.If someone sues are they responsible for all costs if they loose the suit?
Expert:  Roger replied 1 year ago.

It's likely best to amend the bylaws and provide the definition in there after following the proper procedure.

Expert:  Roger replied 1 year ago.

The board could simply adopt the definition accepted by the board.....but I'm sure your bylaws call for a certain procedure.

Expert:  Roger replied 1 year ago.

Once the amendment is made, a copy of the change should be sent to all members.

Customer: replied 1 year ago.
we've already planned to do all that but is it retroactive? And how do we handle the owners that are violating the rule, as we see it, now?Again, If someone sues are they responsible for all costs if they loose the suit?
Customer: replied 1 year ago.
We can add a definition to the rules without the association owners vote. If we change the declaration or the by-laws we'd need to announce it for our annual meeting and it would have to pass an majority vote there.How do we handle the owners that are violating the rule, as we see it, now?Again, If someone sues are they responsible for all costs if they loose the suit?
Expert:  Roger replied 1 year ago.

It's not going to apply retroactively......if there's no guidance or definition already in place. Instead, you're going to have to amend the bylaws and set a start date in the future.

As for costs, there's no law that says whether the winner gets his/her/it's coats paid by the loser or not (except in very limited situations where there's a statutory authority), so it's be up to the judge. But, most courts just allow each party to bear his/her/it's own costs.

Expert:  Roger replied 1 year ago.

If there's no definition of immediate family adopted, it's going to be hard to enforce anything until you get this changed. The reason is that there's been no ratification of the board decision until it goes through the hoops to become a part of the bylaws.

So, people can likely get away with this for a short time....until the bylaws are changed.

Customer: replied 1 year ago.
by just having "immediate family" in our rules without a definition we're screwed?I thought if there was a generally accepted definition the board agreed on we were on solid ground.Such as: http://definitions.uslegal.com/i/immediate-family/
Immediate family refers to a person’s parents, spouse, children, and siblings and will also include the parent’s spouse. Usually step children and adopted children and their spouses are included under the purview of immediate family.
Expert:  Roger replied 1 year ago.

The only way a board or any body politic can speak is though its bylaws and minutes....and if a term is used without a definition of that term, then there's ambiguity that must be corrected.

Customer: replied 1 year ago.
What happened to it's the boards responsibility to interpret the by-laws and rules?
Expert:  Roger replied 1 year ago.

There's really no generally recognized definition -- that I'm aware of -- for "immediate family".....it's not the same as if you were limiting things to a "spouse" or "parents" or "child/children", which are easily definable nouns without the need for a definition.

Expert:  Roger replied 1 year ago.

That's true, and you can adopt the definition of the board and base the amendment of the bylaw on that interpretation (as we discussed above).

Expert:  Roger replied 1 year ago.

But, it's harder to penalize people for something when there's never been a definition adopted.

Customer: replied 1 year ago.
Immediate family" is a common definition - at least it was in 1985 when the rules were adopted. We still have original owners on the board.What you're saying is that definitions don't really matter - you have to list all that are included or not included and be very very specific and that isn't a guarantee either - lawyers always win and this units owner's son is a newly - passed the bar - lawyer and wants nothing better than to take us to court.We as an unpaid board of a very small condo have no chance to enforce any rules or by-laws.
Customer: replied 1 year ago.
I've been waiting 15 minutes for a response and I have to go to bed now.You have been no help so you are not authorized to charge my CC.
Expert:  Roger replied 1 year ago.

Whether immediate family is a common definition is going to be up to a judge.....but I don't think it is very common. I've spent the last few minutes googling the definition and there's a different interpretation at just about every link you click.

Expert:  Roger replied 1 year ago.

I'm sorry that you don't believe I've been any help to you.....which I assume is because I didn't tell you what you wanted to hear. Trust me, in this type of format, it'd be much easier for me to tell you that you're right (or what you want to hear) and make you happy enough to pay me and move on, but it's more to it than that (at least for me). I want to tell you something that is honest as opposed to what you want to hear.

If you don't want to pay me, that's your business....but you should discuss this issue with your board and your board attorney (if you have one) and consider making the necessary changes.

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