Maine Condo

A reader of this blog asks:

“Joe – We are currently doing a rules revision at [our condominium]. The question came up: Can the board restrict the usage of political signs posted in windows in such a way that they are visible from the common areas? Can you tell me what Maine and/or Federal law has to say about this?

The fall elections come in two weeks, and until then we see campaign signs blooming like mushrooms along our highways.  Can they be placed on the common elements?  In windows?  Isn’t this a matter of free speech?

The answer is no.  Although the first amendment to the Constitution prohibits interference with free speech, it applies only to government entities, not private condominium associations.  The common elements of the condominium are controlled directly by the condominium association, acting through its Board of Directors, and they can prohibit political signs from being posted there.

In addition, Section 1602-111 of the Maine Condominium Act says that a unit owner may not change the exterior appearance of a unit or any other portion of the condominium, without permission of the association.  This gives the association the authority to prohibit political (or any other) signs in windows or other areas of the unit which can be seen from the common elements.

It should be noted that federal law prohibits condominium associations from limiting the right to fly the American flag.

Question from a board member:

If a condo owner is not paying his/her condo fee, can the Board “hold off” on cutting the lawn around his/her condo and refuse to trim the shrubs and not do “winter clean up” in the Spring, for example, until they resume paying. What can the Board do in such a case?

No, the Board has an independent duty to maintain the common areas and besides, the association has plenty of ways to collect the condo fees, with interest.    The flip side of this coin is that a condo owner has an independent duty to pay condo fees, even if the association doesn’t cut the lawn around the condo unit….

Is it accurate to say that the Board of Directors is authorized by the Maine Condominium Act to manage the condo association effectively and efficiently?

Yes, the Board actually has almost exclusive power to manage the condominium association – some say too much power.  It is easier to list the things that only the unit owners can do.  They are:

A.  amend the Declaration, the Articles of Incorporation and, if provided for in the Declaration or Bylaws, approve amendments to the Bylaws.

B.  terminate the Condominium

C. elect members of the Board or determine the qualifications, powers and duties, or terms of office of Board members, but the Board may fill vacancies in its membership for the unexpired portion of any term.

D. ratify the budget (but the Board has the sole power to adopt the budget, subject to such ratification.

E. remove a Director by a 2/3 vote, after proper notice, according to Section 704 of the Maine Nonprofit Corporation Act.

F. other rights given to owners found in the Declaration of Bylaws.

Here is a question I received recently from a Maine condominium owner:

I came across your website and wonder if you can help our family answer a question about Maine law related to condos and smoking.  We own a 2nd floor condo . . . and directly below us is a smoker.  My mother has asthma and is having difficulty with the smoke rising into our condo unit.  Can you advise if there are any Maine laws related to condos and smoking?

My response

Hello, and thanks for your question.

I cannot give specific legal advice to questions posed over the Internet, but here is some general comment:

There is nothing in the Maine condominium act which prohibits smoking in condominiums. Smoking is prohibited in public places in Maine, see http://www.mainelegislature.org/legis/Statutes/22/title22sec1542.html

There have been cases in other states where condominium associations have attempted to prohibit smoking in condominium units where the smoke was spread to other units or the common areas, and I have in mind a case from Colorado where the association was upheld legally. The theory in such cases is that of the legal doctrine of nuisance.

If you want to proceed to try to stop the smoking, you might want to work through your condo board.

Joe Carleton