Amendment to Condo Declaration Required Where Proposed House Rule Constitutes an Amendment to Permitted Use of Unit
This week we wanted to alert you to an interesting case decided by the Appellate Division, Second Department, which affirmed a Lower Court’s Order holding, in part, that a Condominium Board’s attempt to amend a House Rule restricting certain dogs from being on the property was not protected from Court review under the Business Judgment Rule. The Court further held that the proposed House Rule was null and void for failure to obtain approval from Unit Owners holding at least 66 2/3% of the common interests as required by the Condominium’s By-Laws, which was the threshold needed to amend the Condominium Declaration.
The relevant facts of, as well as a link to, the case are set forth below.
A Condominium Board adopted a house rule prohibiting any dog weighing more than 25 pounds from being on the property. A unit owner sought a judgment that the rule was null and void because the house rule had not been approved by 66 2/3% of the unit owners, which vote is required to amend the by-laws. The Appellate Division, Second Department, affirmed the grant of the Plaintiff’s motion for summary judgment by the Supreme Court, Nassau County. According to the Appellate Division,
“…the plaintiff demonstrated, prima facie, that the board’s adoption of the house rule was not authorized by the condominium bylaws, and thus, the adoption of the rule was not protected by the business judgment rule [citations omitted]. Since neither the condominium bylaws nor [the declaration] contained any restriction on the size of dogs permitted on the condominium premises, the house rule constituted an amendment of a permitted use of the plaintiff’s unit, which, pursuant to Article X of the condominium bylaws, required approval by 66 2/3% of the homeowners at a noticed meeting, and an amendment to the declaration [citations omitted].”
Turan v. Meadowbrook Pointe Homeowners Association, Inc., 2022 NY Slip Op 07255, decided December 21, 2022,is posted at https://www.nycourts.gov/reporter/3dseries/2022/2022_07255.htm
This case is an important reminder to carefully review a Condominium’s By-Laws and Declaration prior to enacting certain House Rule revisions to ensure the enforceability of the proposed new rules.
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