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Q & A
Each month we answer legal related questions submitted from our readers.
Q: Does the board of directors have any control over the number of individuals living in single-family zoned residences?
A: Although association-adopted occupancy restrictions are not automatically unlawful, such restrictions are often found to be a violation of fair housing laws. The Fair Housing Amendments Act (FHAA) prohibits discriminations against families with children, and oftentimes occupancy restrictions do exactly that. For example, adopting a covenant or rule defining the term "family" has been found to be a violation of the FHAA. Furthermore, the city or county where the community is located will likely have ordinances that set limitations on occupancy. Many ordinances follow the federal guidelines on occupancy, which in most instances, allow two persons per bedroom. An association may not adopt any occupancy limits that violate such ordinances or federal guidelines, however, in most instances, adopting a two person per bedroom standard will not be considered discriminatory. We recommend an association consult its legal counsel prior to enforcing occupancy limits and make sure these limits are in compliance with all applicable laws. Alternatively, an association may choose to enforce occupancy restrictions by reporting violators (of local occupancy standards) to the appropriate municipality and allow the municipality to initiate enforcement and its occupancy standards.
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Q: What enforcement options are available to an association where certain residents play their stereos too loud or move their televisions onto the balconies to watch sporting events?
A: An association may enforce its rules and covenants through various means, such as: sending demand letters, imposing fines (after notice and opportunity for hearing) or initiating a covenant enforcement lawsuit against the property owner. However, noise rules and covenants are difficult to enforce due to the subjective nature of "noise".
A noise that is loud or offensive to one owner may not be loud or offensive to another owner. As such, noise complaints are difficult for an association to investigate and the police department is better suited to address such issues. Therefore, if an association adopts noise regulations, such regulations should be very specific and provide measurable and objective guidelines (such as maximum decibel levels). If an association adopts such regulations, it may invoke one of the above enforcement remedies against a violator. The association may also have other rules or covenants in place that indirectly regulate noise in the community, such as a nuisance prohibition or a requirement that owners comply with all local and state laws (including noise ordinances).
However, enforcing these types of regulations will present the same difficulties as described above. It may be more appropriate and cost-effective for the association to report such matters to local law enforcement especially where the covenant violation also constitutes a violation of the law. If there is any confusion as to whether an incident constitutes a violation, or which remedy should be used the association's legal counsel should be contacted.
* Please email or fax your questions with your name and contact information to: QAcolumnist@ortenhindman.com or 303.432.0999. Due to the volume of questions received, we cannot guarantee an answer.
[PRINTER FRIENDLY VERSION]
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Community Associations Institute
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The Community Associations Institute (CAI) is a nonprofit organization that provides education and resources to community associations. To find out more about CAI visit www.caionline.org
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