Is this permissable in a condo community?

This is a bit long, and I apologize, but it begs for an answer as to whether an HOA board has the right to bar residents from entering other buildings in the condo and investigating and photographing problems in the common areas for the purpose of informing the rest of the community of these issues.

I happen to run a blog in our community of just under 800 homes and have done so for 10 years. The blog is not sanctioned by the HOA.

With the help of residents, the blog points out issues in need of attention and pictures are posted daily of issues like trash bins left open, alarm boxes showing trouble, packages mis-delivered, garage leaks, mold issues, bug infestations, etc.

I occasionally enter condo buildings when I see a problem with the alarm or packages left where they do not belong or when I receive a call or email from a resident asking me to check something or other. In 10 years I have never received a complaint from the board or any resident suggesting I should cease what I was doing.

The board is not enamored of the blog because they would rather it look as if everything is just right in the community, but we have persevered over the years and most of the residents in the community read the blog on a regular basis and many contribute.

At the July HOA meeting, it appears as if the board decided to try to do something about the blog. They made the following motion which was passed 5 to 0 with 1 abstention...

In order to protect the privacy of all suite residents, a rule to bar residents from entering other buildings to inspect or photograph except if invited or in emergency situations was proposed to the Board:

“No person, other than residents of a suite building, guests of a suite building resident, repair persons, or persons authorized by either the HOA or Board of Managers of that Condominium shall enter upon, inspect, or take photographs of the interiors of said suite building, except in the case of an emergency. Nor shall any person enter on to non-common areas outside the suite buildings without the express permission of Management or the HOA or the respective Board of Managers for the area. Violations shall be subject to a $50 fine for the first offense, $100 for the second offense and each offense thereafter as well as suspension of clubhouse privileges for a period of thirty days for each subsequent offense. Any decision of the Board or Board of Managers of the respective Condominiums may be grieved pursuant to Grievance Procedures currently in effect.”

After reading that, I went on the blog to notify the community of this new ruling and asked if residents in the 37 condo buildings would invite me into their buildings to do what I had always done. Within a week or two residents from 34 of the 37 condo buildings invited me in, and I was following up with the remaining three so I could go back to doing what I had always done.

However, things changed a month later at the August HOA meeting. Now they decided they were going to amend the new rule, and this adjustment was approved by the same 5 to 0 with 1 abstention vote.

Here is the new, amended ruling...

Amended Resolution to bar residents from entering other buildings to inspect or photograph, approved by Board:

"NO NON-RESIDENT OF A SUITE BUILDING EXCEPT AUTHORIZED CONTRACTORS, VENDORS, OR MANAGEMENT EMPLOYEES OR MEMBERS OF THE HOA BOARD OR BOARD OF MANAGERS SHALL ENTER UPON ANY SUITE BUILDING FOR THE PURPOSE OF INSPECTING OR PHOTOGRAPHING THE INTERIORS OF SAID BUILDING. VIOLATORS SHALL BE SUBJECT TO A $50 DOLLAR FINE FOR THE FIRST OFFENSE AND 100 DOLLAR FINE FOR EACH SUBSEQUENT OFFENSE."

Now you will note suddenly guests of building residents are no longer permitted in the buildings, and even the words "except in the case of an emergency" were taken out so should I see a problem with the alarm or I get a call that the garage is leaking or someone is experiencing an infestation of ants or growing mild, I am, according to this ruling, not allowed to enter any building but my own.

Residents responded in very angry fashion on the blog to this new rule, and one even asked if it is legal for the board to do this.

I figured the best place to ask was right here. Any insights would be greatly appreciated.

Steve S.
New York

It's great that you're trying to keep your community informed - I always say speaking truth to power isn't easy and I'm sure the board doesn't like to see its problems out in the open. However, you're asking a legal question, and for the best answer you need a private attorney - we aren't lawyers and you have to be careful about getting advice from the internet - what may fly in my state may not be the case in yours.

Having said that, I don't see why you can't photograph part of the common area if visitors, residents, vendors and everyone else has access to it. That may not always mean it's a good idea - for example your photographs of malfunctioning alarm boxes. You do realize that your blog may be seen by more than the residents of your community - do you want a burglar to look at that and decide to stop by and see if he/she/they can find a malfunction alarm, break in someone's home and help themselves? Ditto for delivered packages.

Not only that, a potential homeowner might happen upon your blog, see the bug infestation, trash bins being left over (that's probably the homeowner's fault, by the way) and decide hell no, I'm not buying in that place - it's a dump! That might not help the community's reputation or its property values

By the way, why blame the board for misplaced packages? Unless you have an issue with address numbers missing or fading, the person expecting the package should take that up with whoever he/she sent it.

In fact, how is it that your neighbors haven't done anything about a board that doesn't seem to be doing anything about these issues? They read your blog and see what's going in - if they want the problems resolved, they need to get up and start attending some board meetings to demand answers. If this board cannot or refuses to act, perhaps the homeowners need to consider voting for people who will do what they want. While they're at it, they need to hold each other accountable (e.g the trash bins). And perhaps take a good look at the finances - people want this, that and the third to be done, but don't seem to want to pay the assessments necessary to get it done. That could be a big reason as to why you have the problems you see.

I thank all those who replied so far. It is very helpful.

To answer the questions about why I do not become a board member, the answer is simple... I represent the residents in a different way from board members and have pledged to keep them in the loop on decisions made and not made since everything is kept close to the vest in our community. I have been told the board has a secret policy that none of them can post on the blog. However, since we all own a piece of the action, I feel someone needs to include the homeowners so we can hear their opinions as well.

As for damaging the reputation of the community... in my 10 years, it does not appear anyone has ever not come to the community because of the blog or left it because of the blog. We do not advertise its existence.

The board is diligently reading the blog on a regular basis, so they are getting the feedback that they are not asking for although they won't admit it That's a good thing. Ironically, many former board members come and post on the blog after they leave office because they are concerned about issues.

In answer to what our Offering Plan (Prospectus) states are the rules of the road for making rules about residents being prevented from entering the common areas of other buildings, I just posted this on the blog but I cannot insert the pictures of the actual pages in the Offering Plan, but you will get the gist. Your continuing comments are greatly appreciated.

Steve S.
New York

Having read the Offering Plan hundreds of times over the past 10 years the blog has been around in an attempt to assist residents, I still was uncertain how it treated Common Element access as it pertained to residents and guests.

So, I spent a bit more time and came up with a few interesting passages which may give us a clue whether the board overstepped its boundaries with these new rules forbidding residents from entering other condo buildings, whether as a guest or a homeowner.

Keeping in mind I am not a lawyer but I do know how to read, I found the most telling information in the Offering Plan section entitled, "Declaration of Covenants, Restrictions, Easements, Charges and Liens"

Here on Page #5 is the following information. Although both paragraphs are pertinent to the current issue, I have zeroed in on the exact words (see red parentheses) that appear to tell the whole story....

If I am translating the text properly, it appears to be telling us that homeowners are free ("the Board may not impose any limitations upon the use...") to use the Common Areas, and since the lobby, stairs, hallways, and garage are all Common Areas on condo buildings, there should be nothing preventing a resident from entering another building.

Then we get the distinction between homeowners and guests of homeowners. In the case of guests, the Offering Plan is clear that the board has some authority ("establish a limitation on guest privileges") to set down some rules, specifically for parties, meetings, "and other similar events".

This ability of residents to use all Common Properties is borne out elsewhere in the Offering Plan as well...

In the By-law section on what the powers of the Directors are, here is the text referring to what rules they can make...

You will note the use of the word "reasonable" and the text specifically appears to refer to rules for guests. Additionally, such rules, in order to become active, must be sent to each and every homeowner. It does not appear the July ruling was ever sent to anyone nor has the August revision.

So, ironically, the board seems to have the ability to limit guests (and interestingly, the July rule was allowing guests), but I have seen nowhere any mention of how they can take away the rights of homeowners to walk on Common Property of which they are part owners.

And if they wish to change those rules, there is a By-law and Covenant Revision Committee, which happens to have at least four Directors on it, that can rewrite the rules of Common Areas, and if they get a 2/3rd vote of the community, then it can become the law of our land.

But whether they can just create such homeowner common area regulations as we have seen in July and August, in my non-lawyer opinion, is questionable at the very least.

Steve S8

>>what the board is doing is illegal.. they are overstepping their authority . they have no legal authority to prevent owners from accessing common areas.. and the certainly can't tell you , yo ucan't take pictures.. >>

Maybe. The OP needs to read and understand his governing documents. My community's Declaration states that unit owners have the right to use the common elements for any purpose for which the elements are designed. It reads as follows:

“Every member shall have the right and easement of enjoyment in and to the Common Elements and to any easement appurtenant to the Common Elements and such easements shall be appurtenant to and shall pass with title to every Unit SUBJECT TO THE FOLLOWING PROVISIONS: (a) THE RIGHT OF THE BOARD TO PROMULGATE RULES AND REGULATIONS GOVERNING THE USE THEREOF..." (capitalization mine)

As always, the devil is in the details, and if the OP's declaration contains similar language, the board may be within their rights if they have evidence that the OP's blog and actions are sources of divisiveness and are harming property values. The OP should consult his own attorney and not rely on opinions stated on an internet forum.

In the eyes of the BOD, Steve is a troublemaker and they will try to limit his access to things.

"NO NON-RESIDENT OF A SUITE BUILDING EXCEPT AUTHORIZED CONTRACTORS, VENDORS, OR MANAGEMENT EMPLOYEES OR MEMBERS OF THE HOA BOARD OR BOARD OF MANAGERS SHALL ENTER UPON ANY SUITE BUILDING FOR THE PURPOSE OF INSPECTING OR PHOTOGRAPHING THE INTERIORS OF SAID BUILDING. VIOLATORS SHALL BE SUBJECT TO A $50 DOLLAR FINE FOR THE FIRST OFFENSE AND 100 DOLLAR FINE FOR EACH SUBSEQUENT OFFENSE."

I wouldn't worry about guest rules. You are not a guest. Whether they can change other common area rules w/o a by-law amendment with a 2/3 vote is the key here. And what your process is for arguing fines.