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04/27/2018 : Should Exceptions Prove There Are No Rules On Leasing Condos?

By Benny L. Kass

April 27, 2018

Dear Benny: Our condominium does not permit leasing of a unit. To meet special situations and to avoid undue hardships, our board of directors has the right to grant permission to lease a unit for a period of not less than four months nor more than 12 consecutive months.

This is stated in our declarations and was permitted two times in the past 20 years. A unit owner and real estate agent have stated that since permission was granted in the past, the owner can now lease the unit for any amount of time with no restrictions. If the board does not agree to this, the owner will take action with a lawsuit.

Does the unit owner have the right to this action? – Gerard

Gerard: Anyone can sue anyone at any time, and as we all know, we have become a very litigious society. I don’t have any statistics, but I suspect that condo owners file more suits against their neighbors and/or their associations than do private homeowners.

You have raised an interesting legal question that may have to be resolved by a judge. My opinion – and clearly not a legal opinion – is that the owner does not have the automatic right to lease. The declaration is clear: Leasing is restricted to no more than one year.

And the public policy of the association is also clear: We don’t want tenants in our association.

But I am only a lawyer columnist – I am not the judge.

Dear Benny: I really enjoy your articles. It’s the first thing I read in my paper. My situation/question is this: I own a condo in a 90-unit professionally managed building.

One of our board members routinely records our meetings. She does not do it surreptitiously. If it’s your first board meeting, you might not notice it, but her cellphone is situated on the edge of the front table and on occasion she has made references such as: “I have it recorded that you said . . .”

My question is: Does she have to announce that the meeting is being recorded? Should there be a notice posted on the door that the meeting is being recorded? What if I posted a notice alerting/warning everyone entering the room that everything they say will be recorded? Could the board stop that? I don’t want to be a troublemaker, but it just doesn’t seem right to record people without their explicit knowledge that they are being recorded. – Maureen

Maureen: I fully agree that everyone should be informed they are being recorded. However, there is a debate among community association attorneys as to whether a unit owner is protected by the freedom of expression rights under the First and the 14th Amendments to the Constitution. So I am not comfortable telling you it is acceptable to post any kind of notice.

Having said that, I would have no problem if you take the following steps: Privately, talk with the board member and suggest she announce, at the beginning of each meeting, that she is recording the meeting. Tell her the recording becomes a public record and thus must be made available to inspection upon request.

If she refuses, then at the beginning of each meeting, I would stand up and say: “I know that board member Ms. X is recording this meeting, and I am formally requesting the right to listen to the recording within the next few days.”

The board member has the right to record the meeting, but all owners have the same right to know they are being recorded.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. Send questions to [email protected] .