As a general rule, federal, New York State and local laws are applicable to community associations and any such statutes usually have priority over the governing documents of individual community associations when the law is in conflict with those documents.
The question arises as to whether a community association, led by its board, should incorporate those laws into its governing documents by way of amendment.
The suggestion has some appeal. First, it puts everyone in the community on notice that these laws exist and apply to the residents. Second, it serves to remind future community boards that these laws must be obeyed.
An example is the Fairness in Cooperative Home Ownership law that was adopted in 2009 by the Suffolk County Legislature and which established new requirements for co-op boards to follow in treating purchase applications. If a co-op board amended its Proprietary Lease to include these provisions, it would place all concerned on notice of the rights and obligations set forth in the statute. If the lease was not amended, there exists a danger that a board, at some time in the future, could follow the now-outdated provisions in the original lease and run afoul of the county law.
More recent state legislation, regarding conflict-of-interest disclosures, sexual harassment prevention policies, electronic voting and, most recently, electric vehicle charging stations (for condominiums only, so far), to name a few, all create new rights and responsibilities which, arguably, should be incorporated into a community’s governing documents by amendment.
That argument, however, has a few substantial pitfalls. First, most communities’ governing documents allow amendment by approval of a supermajority of the owners. If a vote is held and the proposed amendment fails to garner the requisite support, the law still applies, but community residents may be led to believe otherwise. Chaos will reign. In addition, amending the declaration or by-laws of a condominium or homeowners association often requires filing the amendment with the county clerk and payment of the required (often substantial) filing fee. You can always ask the state or the county to waive the filing fee, since the amendment was the result of a new law promulgated by the state or the county – just don’t hold your breath.
Another, simpler solution may be to create a House Rule, written policy, or other written record of the statute and its applicability to your community.
Provide all owners with a copy of the rule, policy or record when created, and include the document as a part of the materials provided to purchasers of units in the community. When you distribute your rules at the annual meeting or otherwise, make sure these notices of applicable laws are included. You’ll avoid nasty, threatening letters from attorneys, the New York State Division of Human Rights, or the Attorney General’s office, and will sleep better knowing that no laws been forgotten or overlooked.
