See second question regarding rental condo fees
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Sunday,
December 23, 2007 (SF Chronicle)
Q: In a number of columns over the past few years, people have written about condominium associations implementing monthly renter fees. Recently my condo association has been thinking of doing the same. I am currently an off-site landlord.
Can the board of directors implement such a fee?
A: One of the basic rules on condominium living is that common expenses are to be paid by unit owners based on their percentage interest. These percentages can usually be found in the declaration, which is a legal document creating the condo association. This document is recorded among the land records in the state where the property is located.
Accordingly, if the board wants to impose a renter fee, the burden is on the board to justify its decision. Does a renter cost the association more than an owner? Many associations can legitimately charge a move-in, move-out fee, but this fee is levied across the board and is a charge whether a tenant or a new owner moves in or out of the complex.
It is true that when a person buys into a condominium, he or she is bound by the rules and regulations (and legal documents) as they currently exist and as they may be properly amended from time to time.
Condominium associations throughout this country have attempted to limit - or even restrict - owners from renting out their units. Where these issues have been litigated, the majority of the courts have upheld these restrictions, but only where the legal documents have been properly amended. As you know, to amend your declaration or bylaws, it requires a supermajority of all owners (often 66.6 percent or even 75 percent) to vote in favor of the proposal.
But many courts have invalidated resolutions merely enacted by the board, where membership approval was not obtained.
I personally question whether such a resolution in your community would be valid. From a practical point of view, how will the board monitor who is renting and who is not? This could create a serious burden on the association and not be cost-beneficial.
It is obvious that your board wants to restrict rentals in your building.
It should address the issue head-on and try to get the membership to enact a valid bylaw or declaration amendment. To single out owners who rent by imposing a rental fee seems discriminatory to me.