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Maverick
Maverick, Lawyer
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Experience:  20 years professional experience
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I live in a condominium complex in Quincy, MA Today they

Customer Question

I live in a condominium complex in Quincy, MA
Today they posted a notice that anyone smoking anywhere
outside (including porches) would be fined $100.00
The notice also says smoking is only permitted INSIDE the units.
I thought there had to be a vote with 75% owner occupants approving before such a ban could exist.
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 10 months ago.

Welcome and thank you for your question. I will be the professional that will be assisting you. If there was no smoking ban prior the HOA needed to follow the amendment process as set out in you governing documents to impose a new rule. What do your governing documents the board MUST do to amend bylaws?

Customer: replied 10 months ago.
Thank you
Expert:  Attyadvisor replied 10 months ago.

This link sets out all of the Laws that govern an HOA in MA:

"Homeowner Associations are governed by a chain of governing documents and laws.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

  • State laws affecting Common Interest Communities vary widely.
  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

Massachusetts State Laws:

  • Nonprofit Corporation Statutes generally apply to any incorporated Common Interest Community.
    Massachusetts Corporations for Charitable and Certain Other Purposes. In Massachusetts nonprofit corporations are generally formed under Chapter 180 of the Massachusetts General Laws, which incorporates by reference numerous provisions of the Commonwealth’s Business Corporation Act and governs the formation, operation and dissolution of nonprofit corporations in Massachusetts.

 

Can you tell me what your bylaws set out is the requirement to amend a rule?

Expert:  Attyadvisor replied 10 months ago.

or propose a resolution?

Customer: replied 10 months ago.
Can smoking be banned on my private balcony that only opens only into my unit and no one else's?I do not know what the by laws are to establish such a rule.
Expert:  Attyadvisor replied 10 months ago.

Based on what your saying you could open the balcony door and smoke but not stand outside. They can actually turn a condo in a no smoking condo, if they follow the rules.

Can smoking be banned on my private balcony that only opens only into my unit and no one else's?

Unfortunately they can, HOWEVER, they can only do so through a proper amendment. There is a very specific procedure that must be followed they cannot just post this and say it is a new rule. Do you have a copy of your bylaws?

I do not know what the by laws are to establish such a rule.

If you do not have a copy of the governing documents we need to make sure that the HOA provides them to you.

Please give me a moment to provide language the statute/law in MA requires for an amendment.

Expert:  Attyadvisor replied 10 months ago.

http://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter183A/Section11

"Massachusetts condominium smoking rules

As anti-smoking restrictions become increasingly widespread, smokers find the last place they can indulge freely is within the confines of their home. However, the saying that a man’s home is his castle may not extend to condominiums where condo associations are enacting bans against smoking in common areas and even individual units." http://massrealestatelawblog.com/tag/massachusetts-condominium-smoking-rules/

So we need to know what your rules require.

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Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

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Expert:  Maverick replied 10 months ago.

Welcome! My name is Maverick. Please give me a few minutes to analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 10 months ago.

Your previous expert has opted out. Did you still need help with this and if so, can you please state what remaining questions you have?

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