Topic:
FLAGS; CONDOMINIUMS;
Location:
CONDOMINIUMS; FLAGS;

OLR Research Report


February 28, 2007

 

2007-R-0249

CONDOMINIUMS AND FLAG DISPLAYS

By: George Coppolo, Chief Attorney

You asked about state laws regarding the internal rules that condominium associations may establish, and the right of a condominium owner to display an American flag.

SUMMARY

State law requires condominium associations and individual unit owners to be governed by the condominium's declaration and bylaws. It allows the declaration to include restrictions concerning the use of units. It also requires the bylaws to include whatever restriction and requirements regarding the use of units and common elements that are not set forth in the declaration and are designed to prevent the unreasonable interference with the use of other units and the common elements. The law allows unit owners to amend the declaration and bylaws and establishes the procedures and vote required to do so.

The law generally requires a vote of at least 67% of the association voting interests in order to amend a declaration. It authorizes the declaration to mandate a higher amount for residential condominiums and a smaller amount if all the units are nonresidential. But there are numerous exceptions.

Except to the extent prohibited by the declaration and bylaws, and subject to any restrictions and limitations specified in them, the law authorizes the unit owners' associations to grant or withhold approval of any action by one or more unit owners or others entitled to occupancy of any unit that would change the exterior appearance of any unit or of any other portion of the condominium, or elect or provide for the appointment of an architectural control committee, to grant or withhold such approval.

The condominium laws do not explicitly deal with whether the declaration or bylaws can prohibit or regulate the displays of flags. State law does not explicitly authorize condominium unit owners to display a flag on or near their unit or on the common elements. And we have not been able to find any Connecticut court case that deals with this precise issue.

DECLARATION

The law requires that the declaration contain certain information such as:

1. the names of the condominium and the association and a statement that the condominium is either a condominium, cooperative or planned community;

2. the name of every town in which any part of the condominium is situated;

3. a legally sufficient description of the real property included in the condominium;

4. a statement of the maximum number of units that the declarant reserves the right to create;

5. a description of the boundaries of each unit created by the declaration, including the unit's identifying number; and

6. a description of any limited common elements.

The declaration may also contain any other matters not inconsistent with the law that the declarant considers appropriate, including any restrictions on the uses of a unit or the number or other qualifications of persons who may occupy units (CGS 47-224(b)).

AMENDMENT OF DECLARATION

Generally, the declaration, including any surveys and plans, may be amended only by vote or agreement of unit owners of units to which at least 67% of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use (CGS 47-236).

Use or Occupancy Restrictions

By vote or agreement of unit owners of units to which at least 80% of the votes in the association are allocated, or any larger percentage specified in the declaration, an amendment to the declaration may prohibit or materially restrict the permitted uses or occupancy of a unit or the number or other qualifications of persons who may occupy units. The amendment must provide reasonable protection for a use or occupancy permitted at the time the amendment was adopted (CGS 47-236(f)).

Use of Units

If the declaration of a common interest community, whether created before or after January 1, 1984, contains a provision requiring that amendments relating to the use of units, may be adopted only by the vote or agreement of unit owners of units to which more than 80% of the votes in the association are allocated, such a proposed amendment is deemed approved if either:

1. unit owners of units to which more than 80% of the votes in the association are allocated vote for or agree to the proposed amendment; no unit owner votes against the proposed amendment; and notice of the proposed amendment is delivered to the unit owners holding the votes in the association that have not voted or agreed to the proposed amendment and no written objection of the proposed amendment is received by the association within 30 days after the association delivers notice; or

2. unit owners of units to which more than 80% of the votes in the association are allocated vote for or agree to the proposed amendment but at least one unit owner objects to the proposed amendment and, pursuant to a proceeding the association brings to Superior Court against all objecting unit owners, the court finds that the objecting unit owner or owners do not have a unique minority interest, different in kind from the interests of the other unit owners, that the voting requirement of the declaration was intended to protect (CGS 47-236(j)).

Threshold Votes For Unit Owner Approval

The law establishes thresholds for condominium unit owner action in several areas. The law requires at least 67% approval to amend the declaration. In several instances, it requires a higher threshold and in a few instances requires unanimous approval. In Table One we have summarized these provisions including whether the law allows the declaration to establish higher or lower thresholds.

The law requires that condominium associations have bylaws that establish a method of amending them. But the law does not specify a minimum threshold for amending bylaws.

Following in Table 1, is a list of the thresholds the law requires for approving various types of changes condominium documents.

Table 1: Thresholds for Unit Owner Approval

Document Amended or Other Action Taken

Specifics

Minimum Vote Required

Declaration May Provide Otherwise

Citation

Amend declaration

Any action, except as law otherwise specifies

At least 67%

Declaration may require higher percentage or may permit lower percentage if all units restricted to non-residential use

47-236(a)

Amend declaration

Boundaries between units and common elements to be relocated to incorporate common elements in a unit

Approval by people entitled to cast at least 67% of the vote.

Yes

47-231

Amend declaration

Create or increase special declarant rights, increase the number of units, or change the boundaries of any unit or the allocated interests of a unit

Unanimous consent

Unless expressly permitted or required by law

47-236(d)

Amend declaration

Prohibit or materially restrict the permitted uses or occupancy of a unit or the number or other qualifications of people who may occupy units

80%

Declaration may require more than 80%

47-36(f)

Table 1:-Continued-

Document Amended or Other Action Taken

Specifics

Minimum Vote Required

Declaration May Provide Otherwise

Citation

Amend declaration

Extend time limits specified in the declaration to exercise reserved development rights, increase the number of units to be increased, and new development rights or other special declarant rights to be created

80%, including 80% of the votes allocated to units the declarant does not own

No

47-236(g)

Amend declaration

Relocation of boundaries between units and common elements to incorporate common elements within a unit

67% of votes allocated to units the declarant does not own

Declaration may provide otherwise

47-231

Termination of condominium

Termination of condominium by agreement of unit owners

80%

Declaration may require a higher percentage. It may require less than 80% if all units are restricted to non-residential units

47-237

Termination of condominium containing units not having horizontal boundaries described in the declaration

Sale of units following termination agreement

Unanimous consent

The declaration as originally recorded may provide otherwise

47-237(d)

Merger or consolidation of condominium

Agreement of two or more condos to merge or consolidate

80%

Declaration may require a higher percentage. It may require less than 80% if all the units are restricted to non-residential use.

47-240

Removal of executive board member

Removal of executive board member with or without cause

2/3rds of those present and entitled to vote at any unit owners meeting as long quorum is present

No

47-245(g)

Quorums

Quorum is present during any association meeting

Those entitled to cast 20% of the votes for executive board are present

Bylaws may provide otherwise

47-251(a)

Quorum

Executive board meeting

Those entitled to cast 50% of votes on that board

Bylaws may provide otherwise

47-251(b)

Budget

Approval of association budget

Majority of all unit owners

Declaration may require a higher percentage

47-245(c)

ORGANIZATION OF UNIT OWNERS' ASSOCIATION

State law requires that a unit owners' association be organized no later than the date the first unit in the common interest community is conveyed. The membership of the association must consist exclusively of all unit owners. The association must be organized as a profit or nonprofit corporation, trust, partnership, or unincorporated association (CGS 47-243).

POWERS OF THE UNIT OWNER'S ASSOCIATION

The law authorizes the unit owner's association, subject to the provisions of the declaration, to:

1. adopt and amend bylaws and rules and regulations;

2. adopt and amend budgets for revenues, expenditures and reserves and collect assessments for common expenses from unit owners;

3. hire and discharge managing agents and other employees, agents and independent contractors;

4. institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community;

5. make contracts and incur liabilities;

6. regulate the use, maintenance, repair, replacement, and modification of common elements;

7. cause additional improvements to be made as a part of the common elements;

8. acquire, hold, encumber, and convey in its own name any right, title or interest to real property or personal property;

9. grant easements, leases, licenses, and concessions through or over the common elements;

10. impose and receive any payments, fees, or charges for the use, rental, or operation of the common elements and for services provided to unit owners;

11. impose charges or interest or both for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules and regulations of the association;

12. impose reasonable charges for the preparation and recordation of amendments to the declaration, resale certificates, or statements of unpaid assessments;

13. provide for the indemnification of its officers and executive board and maintain directors' and officers' liability insurance;

14. assign its right to future income, including the right to receive common expense assessments, but only to the extent the declaration expressly so provides;

15. exercise any other powers conferred by the declaration or bylaws;

16. exercise all other powers that may be exercised in Connecticut by legal entities of the same type as the association;

17. exercise any other powers necessary and proper for the governance and operation of the association; and

18. require, by regulation, that disputes between the executive board and unit owners or between two or more unit owners regarding the common interest community must be submitted to nonbinding alternative dispute resolution in the manner described in the regulation as a prerequisite to commencement of a judicial proceeding (CGS 47-244(a)).

Rules and Regulations Affecting Units

Unless otherwise permitted by the declaration or the law, an association may adopt rules and regulations that affect the use or occupancy of units that may be used for residential purposes only to:

1. prevent any use of a unit which violates the declaration;

2. regulate any occupancy of a unit which violates the declaration or adversely affects the use and enjoyment of other units or the common elements by other unit owners; or

3. restrict the leasing of residential units to the extent those rules are reasonably designed to meet first mortgage underwriting requirements of institutional lenders who regularly purchase or insure first mortgages on units in common interest communities. But no such restrictions are enforceable unless notice is recorded on the land records of each town in which any part of the common interest community is located. The notice must be indexed in the grantor index of such land records in the name of the association (CGS 47-244(c)(1)).

Except as specified above, the association may not regulate any use or occupancy of units (CGS 47-244(c)(2)).

MEETING OF ASSOCIATION.

A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having 20%, or any lower percentage specified in the bylaws, of the votes in the association(CGS 47-250). Not fewer than 10 or more than 60 days in advance of any meeting, the secretary or other officer the bylaws specify must cause notice to be hand-delivered or mailed to the address of each unit owner or to any other mailing address the owner designates in writing. The notice of any meeting must state the time and place of the meeting and the items on the agenda. It must include the general nature of any proposed amendment to the declaration or bylaws, any budget changes and any proposal to remove an officer or member of the executive board.

QUORUMS

Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast 20 % of the votes that may be cast for election of the executive board are present in person or by proxy at the beginning of the meeting (CGS 47-251(a)).

Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the executive board if persons entitled to cast 50% of the votes on that board are present at the beginning of the meeting( CGS 47-251(b)).

ASSOCIATION RECORDS

The law requires unit owners' associations to keep financial records and to make them reasonably available for examination by any unit owner and his authorized agents (CGS 47-260).

Executive Board Members and Officers; Duties; Ratification of Budget

The executive board may act in all instances on behalf of the association except as provided in the declaration, the bylaws, or the condominium law, (CGS 47-245(a)). In the performance of their duties, officers and members of the executive board appointed by the declarant must exercise the degree of care and loyalty required of a trustee and officers and members of the executive board not appointed by a declarant shall exercise the degree of care and loyalty required of an officer or director of a corporation organized under state law.

The executive board may not act on behalf of the association to amend the declaration, to terminate the common interest community, or to elect members of the executive board or determine the qualifications, powers and duties, or terms of office of executive board members. But the executive board may fill vacancies in its membership for the unexpired portion of any term (CGS 47-245(b)).

Within thirty days after adoption of any proposed budget for the common interest community, the executive board must provide a summary of the budget to all the unit owners and set a date for a unit owners' meeting to consider ratification of the budget not less than 14 nor more than 30 days after mailing of the summary. Unless at that meeting a majority of all unit owners, or any larger vote specified in the declaration, rejects the budget, the budget is ratified, whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget last ratified by the unit owners must be continued until such time as the unit owners ratify a subsequent budget proposed by the executive board(CGS 47-245(c)).

Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a two-thirds vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant (CGS 47-245(g)).

Bylaws

The bylaws of the association must provide for:

1. The number of members of the executive board and the titles of the officers of the association;

2. election by the executive board of a president, treasurer, secretary and any other officers of the association the bylaws specify;

3. the qualifications, powers and duties, terms of office and manner of electing and removing executive board members and officers and filling vacancies;

4. which, if any, of its powers the executive board or officers may delegate to other persons or to a managing agent;

5. which of its officers may prepare, execute, certify and record amendments to the declaration on behalf of the association; and

6. a method for amending the bylaws (CGS 47-248(a)).

Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate (CGS 47-248(b)).

GC:ts