By: Barbara G. Hager
When it comes to satellite dishes and condominium associations, “going with your gut” may get you into legal trouble!
If you have lived in your common interest community since the early 1980’s you probably remember the time when the Association could forbid satellite antennas and dishes being put up by unit owners. However, the federal government created a new law in 1996 which protects rights of unit owners in condominiums to have a satellite dish or antenna. That new law was called the “Over-the-Air Reception Devices” (“OTARD”) and was adopted as part of the Telecommunications Act of 1996.
After this law was enacted and continuing to the present, Associations may not forbid unit owners from putting up a satellite dish, as long as the dish is no bigger than a meter (39.37”) in diameter. The Association can enforce their other rules regarding no objects being placed on the roof, front of unit or on the outside walls of the unit. Under the law, the Association cannot prohibit the unit owner from placing the dish or antenna on their limited common area decks and balconies. The dish can also be put on the railings of those decks and balconies.
The OTARD law forbids restrictions that might impair the installation, maintenance or use of the types of antennas (dish, TV antennas and wireless cable antennas). The rule does not prohibit legitimate safety concerns. Additionally, historic districts and buildings on the National Historic Register are exempt from the rule, and can forbid satellite antennas and dishes altogether.
Importantly, under OTARD the Association may not require the unit owner to get prior written permission before putting up the dish. That would be considered placing an unreasonable restriction or delay to obtaining televised services. Of course, any Board member or property manager would say: “we have to be able to control where they place the dish!” This is where your rules would come in. The Association’s rules should have a section advising the unit owners where it is permitted to place the dish. Those rules would include things such as, any attachment device must not damage the limited common element when it is removed.
Additionally, the Association is prohibited from requiring that the dish be put in a place where reception would be impossible or substantially degraded. OTARD therefore prohibits the Association from requiring the dish to be placed inside the unit or in a garage.
I have seen several sets of Association rules which still require prior written permission to install satellite dishes or TV antennas. This is against the federal OTARD law and may invite lawsuits. If you would like assistance in drafting proper satellite dish rules, call us!
By: Barbara G. Hager
We at Bender, Anderson and Barba P.C. hope you all have a Happy Thanksgiving. I am thinking today especially about all the board members of our client associations, who work very hard! Thank you for all you do in service to your associations! We know it is a lot more than just going to a meeting once a month, and it is certainly not just pushing papers.
There is a lot expected of board members in performing their duties. Directors and officers have serious legal duties: the duty of care, and the duty of loyalty.
The duty of care means, in all that the Board does, it must work in the best interests of the association, and, just as it says, make decisions carefully. No rushed decisions and no decisions “pushed through” by one particular Board member. All directors should discuss the decision, review all the related documents, contracts, spread sheets etc. It should be noted specifically in the minutes that there was discussion and review of related documents prior to the decision. With complex matters, such as major construction projects and loans, professionals should be consulted, and their reports reviewed closely.
Board members also have a duty of loyalty. That means that a director’s decision is always based on what is good for the association as a whole, not on what is good for a particular unit owner the director is friends with, or for a particular director’s personal financial interests. It also means no board member may contract with or do work for the association unless it is in the best interests of the association, and that Board member recuses him or herself from the vote. The board should be particularly resistant to granting contracts to board members or companies with which board members are associated. There are complex legal requirements regarding conflicts of interest in the event that a board member is hired to do work; contact us before moving forward.
The board of directors makes decisions and “speaks” with one voice. No board members should be out in the community talking with unit owners about decisions the Board has or is going to make. Only the board as a whole communicates those decisions. Additionally, board members should be particularly careful not to promise a unit owner that some repair matter “is the association’s responsibility.” The matter of responsibility must be checked with the Declaration, Maintenance Standards and Maintenance Matrix (if you have one). Not every problem the unit owners have is the association’s responsibility! Do not let yourself feel pressured to agree to something simply because a unit owner pushes you or screams at you about it. Also, do not let pressure from unit owners cause your board meetings to become contentious; always listen and respect one another as the Board reviews and decides each matter.
Keeping these principles in mind, you will all do well, as careful and loyal board members, which in turn will help your communities flourish.
Again, we thank you and wish you well in your service to your common interest community.
By: Kristie Leff
As social acceptance of smoking cigarette smoking changes, smoking in condos is becoming a hot-button issue. Smoking is not a constitutionally protected right, and more people are becoming aware of the health effects of second-hand smoke. As a result, we have seen an increase in complaints from units owners about smoking, and more associations that want to explore smoking bans. That being said, in most cases associations do not have to take any action as this situation can be considered a matter to be addressed between the unit owners themselves: the non-smokers always have a legal right to seek redress against the smoker by bringing a direct action against him in civil court for nuisance. However, if there is a desire among the community to ban smoking in units, or if the smoking complaints may lead to lawsuits being filed, there are measures the association can take address the situation.
For example, most associations have nuisance rules that give the board the authority regulate noxious or offensive activity which may become a nuisance to other unit owners. Such rule provisions can be used to address smoking if it is causing a nuisance for other unit owners. The board can send notice to the smoker that a hearing will be held to address the allegation of nuisance behavior. Based on the evidence presented at the hearing the board can then make a determination as to whether or not the smoking is a nuisance (is there just occasional smoking, or does the smoking happen continually; is the smoke actually emanating into other units; can better ventilation or caulking of cracks remedy the situation; do the complainants have health issues that make them vulnerable to even small amounts of smoke, etc.). If the board determines the smoking is a nuisance and the emanation of the smoke cannot be remedied, the board has the authority to impose fines on the smoker for violation of the nuisance rule.
Another option the board has is to adopt a no-smoking rule pursuant to Connecticut General Statutes Section 47-261b(f)(1). The board always has the power to adopt rules regulating smoking on the common elements. However, this statute allows the board to enact rules to regulate the behavior inside units which adversely affects the use and enjoyment of other units or the common elements by other unit owners. Such a rule can be adopted by the board after notice and comment to unit owners. As with all rules, the unit owners would not get to vote on the rule. Even though an association may already have a rule prohibiting nuisances, a new rule banning smoking in units would directly address the smoking issue and the board would be able to issue fines (after notice and hearing) without having to make a determination as to “nuisance”. Instead, the board need only make a finding that the smoking is adversely affecting others. As this is an emerging area of law, this approach has not been widely utilized, or been challenged in court, so we do not know if this approach will actually stand the test of time.
Instead of adopting a rule, a declaration amendment can be adopted to ban smoking inside units. Regulation of behavior inside of units is considered a “use restriction.” Most declarations allow for implementation of the Connecticut General Statutes Section 47-236(f) procedure to impose a use restriction (such as a smoking ban) upon an affirmative vote of 80% of the unit owner with no objections. The advantage of a declaration amendment as opposed to a rule banning smoking is that a declaration amendment is less susceptible to a legal challenge because it is voted on by the unit owners, not just adopted by the board. The challenging part about a declaration amendment is getting the affirmative 80% of unit owners to vote in favor of it. In order to encourage enough unit owners to vote in favor of a smoking ban, it may be wise to allow a grace period in order to give smokers time to either quit smoking or move out.
Before adopting either a rule or declaration amendment banning smoking, we recommend that the board survey the unit owners to gauge their interest is taking such action. If few unit owners are interested this may not be a worthwhile approach-- it may then be best to approach smoking complaints on a case-by-case basis using the existing nuisance provisions of the rules.
Please contact our office should your association want assistance with smoking complaints, or with implementing no-smoking rules or declaration amendments.