Re: language in Home Owners Association documents
From: Sharon Villines (sharonsharonvillines.com)
Date: Wed, 29 Sep 2021 11:13:50 -0700 (PDT)
On Sep 28, 2021, at 6:08 PM, Marcia Zuckerman via Cohousing-L <cohousing-l [at] 
cohousing.org> wrote:
> 
> I’m at Bay State Commons; we're building a 30-unit urban community in Malden, 
> MA [occupancy Q1 2022!].  We’re reviewing our Home Owners Association [HOA] 
> documents and struggling with language about potentially offensive activity.  
> The current draft says,
> 
> 8. OFFENSIVE ACTIVITIES. No owner may use or maintain his or her Unit or the 
> Common Areas appurtenant thereto for any purpose or in any manner which is 
> contrary to any applicable law, rule, regulation or requirement of any 
> governmental authority, or for any purpose which would constitute a nuisance 
> or be offensive to a majority of the Trustees.
> 
> Some people are concerned about making the law paramount, given the history 
> of laws that supported slavery and outlawed currently legal activities such 
> as sodomy, cannabis, and miscegenation.  Do other communities make reference 
> to laws in their HOA documents?

We are just in the process of revising our bylaws and having the same 
conversations. The attitude is that we don’t have to worry about every 
impossible thing that might happen or that someone thinks might happen. It’s 
our community and the rules exist in our context. Many of the rules in the 
original bylaws have never been put in force and we are just deleting 
them—including one that said "the Board shall place the names of all homeowners 
who are delinquent in their dues in a visible place in the Commonhouse."

Our main objective is that the bylaws reflect what we actually do, not the 
fears of standard large condos, and that they be understandable — written in 
plain English. We have also eliminated a lot of the legal language that assumes 
everyone will be trying to get around the bylaw in one way or another and we 
have to take a defensive position.

> 9.9. Lawful Use of Units.
> In the use of the Units and the Common Elements of the Condominium, Unit 
> Owners will obey and abide by all valid laws, ordinances, and zoning, and 
> other governmental regulations affecting the same, and all applicable 
> Community Rules adopted by the Association. 

If residents want to do civil protest, “valid” is usually the foundational 
argument so it is less restrictive than it sounds. One community states this 
concern as “____ Cohousing is a law abiding community.”  That establishes the 
intention without giving "the laws" any overriding control.

One of the things I really liked when I first read our bylaws was the noise 
section. I had been agonizing over how to word a noise policy because I’ve 
lived in places where people felt it was their god given right to play music as 
loudly as they wished before 10:00 at night (which assumes everyone sleeps at 
10:00 and not earlier in the day or that sleeping is the only acceptable reason 
to object to noise). 

> 9.3. Noise, Music,
> All residents and guests will exercise extreme care to avoid unnecessary 
> noise or the use of musical instruments, radios, televisions, and amplifiers 
> in ways that may disturb other residents.

This alerts people to take "extreme care” to avoid “unnecessary” noise. It also 
identifies noise as “noise” _and_ “music.” Some people do not recognize music 
as noise and others identify only amplified music as noise. And it establishes 
the standard as “bothers other residents.”  But it doesn’t engage in detailed 
word smithing that tempts people to look for loopholes. Or is used to 
intimidate people. 

Other things we spent time on are:

> 9.2. Advertisements
> The Association will have authority to make and enforce Community Rules 
> regarding any posting of advertisements, or posters, signs, and other visible 
> items that other residents may find objectionable.

This puts the attention on how your neighbors feel and shifts any specific 
prohibitions or permissions to a policy or guideline. Real estate sales signs 
have been an issue and are now largely prohibited, for example, but not in the 
bylaws. In a policy they can easily be changed.
 
The sentence on pets does the same:
> Pets are generally welcome in the community subject to the conditions 
> specified in the Community Rules.

Smoking has become a larger issue over the last 20 years. Smoking was allowed 
in the open areas of the property and in units, but people are now much more 
sensitive, particularly to children seeing people smoking. It is now one of the 
warnings on films along with violence and sex.

> 9.4. Smoke, Fumes, 
> 
> 9.4.1. Smoking.
> 
> Smoking is prohibited in all indoor Common Elements.
> 
> Smoking is prohibited in most outdoor Common Elements, including stairways, 
> foyers, exterior landings, front steps, entrance ways, basements, storage 
> areas, parking areas, walkways, lawns, gardens, and grounds. Owners are not 
> permitted to smoke in said areas or permit smoking by any tenant, resident, 
> or guest in said areas.
> 
> Unit Owners, residents, and guests may smoke on outdoor balconies, decks, and 
> back yards assigned to their Unit, provided that they exercise extreme care 
> that secondhand smoke does not drift into indoor common areas, exclusive use 
> areas, or other individual Units.
> 
> Notwithstanding this prohibition on smoking, the Association, in accordance 
> with the Community Rules, may designate (or remove from designation) an 
> outdoor area for smoking, provided the smoking area(s) will not cause 
> secondhand smoke to drift into indoor common areas, exclusive use areas, or 
> individual Units.
> 
> Smoking includes the inhaling, exhaling, or carrying of any lighted 
> cigarette, e-cigarette, cigar, pipe, or other product containing any amount 
> of tobacco, or other similar heated or lighted product.
> 
> 
> 9.4.2 Odors, Fumes, and Airborne Substances.
> 
> All Unit Owners, residents, and guests will exercise extreme care to avoid 
> releasing odors, fumes, and airborne substances that may cause nuisance to 
> other residents.

One of the objections to not allowing smoking anywhere outdoors was about 
workers. Is it fair to expect construction workers or painters to go off the 
property to smoke? So when a company will be onsite, we can designate a smoking 
area.

The balance between establishing values but not being intimidating or 
criminalizing is hard.

Sharon
----
Sharon Villines
Takoma Village Cohousing, Washington DC
http://www.takomavillage.org




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