QUESTION: My building has a common room that is used daily by people playing cards, mah jongg, etc., and I do believe people who don’t live in the building participate in some of these games. We recently allowed a resident to have a meeting in the room as well. Afterward, another resident requested use of the room for a meeting that would possibly have a few people who don’t live in the building. They asked for an application. I denied this person’s request to use the room, and informed the individual that the association attorney was in the process of writing rules for the room’s use, and the board did not want residents using it for meetings about issues the board does not approve of. Prior to this, for a few years, this individual’s wife was on a committee, and a few weeks after this incident, the board president met with her to tell her that her committee was no longer needed and was being eliminated. That same week, the board president organized a group to do the same activity the individual’s wife’s committee was doing. The couple has sent us a formal letter stating they feel singled-out by the board, and discriminated against. Do we have an issue?
Regarding your question, my advice would be to consult association counsel that you mentioned the association had already retained to write the rules for the use of the common area meeting room. Obtaining an opinion from an attorney who specializes in, or who is at least familiar with, community association law in the state where you reside is the best path to choose in order to obtain proper legal advice which can be used to support a board decision.
BNC Bank Corporate Center, Suite 300
3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
You had me until, “The board did not want residents using it for meetings about issues the board does not approve of.” The Board has wide discretion as to how and when a common area can be used. The Board does have the right to condition use on non-expressive grounds, such as barring non-residents, providing adequate insurance, or any of a whole host of measures. It could even condition use on limiting meetings to organizations with charitable or social purposes, for example, or by barring meetings for a “controversial political or social purpose.” However, that last restriction usually does not encompass barring the free expression of ideas of common interest to the community which do not pose a risk to others. The Board could be exposing itself to a claim of “bad faith” if it barred use merely because it did not agree with the sentiments being expressed by the person renting the room.
Smith, Buss & Jacobs LLP
733 Yonkers Avenue
Yonkers, NY 10704
60 East 42nd Street
New York, NY 10165
Is there actionable discrimination Probably not. Is there a problem? Probably so. The Board appears to be letting those who think like the Board use the room and does not permit those who think differently use the room. The Board is elected to serve as fiduciaries – to act in the best interests of all owners. The Board cannot act to benefit themselves (unless that self-interest is the same as the best interests of the owners). Here it appears the Board may be in breach of that fiduciary duty.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
The part of this question that concerns me most was where it said “the board did not want residents using it for meetings about issues the board does not approve of.” My suggestion would be that the board’s decision about whether to allow groups to use common areas such as this room should not ever be based on what the group wants to talk about or what issue is discussed. While the association is a private organization and therefore not subject to the First Amendment in the same way government organizations are, in my view it is never a good business practice to get into what basically amounts to censorship or interference with people’s desire to peaceably assemble by making decisions on permission to use common areas based on what the people want to discuss while using that common area. Such practices could expose the association to accusations of discrimination, so why invite that? When the rules for the room’s use are created, they should be reasonable, sensible and fair, and should be no more restrictive than necessary to ensure that the common areas are used in a safe manner, that no disturbances or nuisances are created, that the property is left in clean condition after each use, and that there is a fair and equitable method for determining who gets to use the space if more than one person requests it on the same date and time (which could be as simple as the first person to sign up or register). It would also be reasonable to limit the number of non-members of the association who can be in the room at any one time.
Finkel Law Firm, LLC
PO Box 41489
Charleston, SC 29423-1489
When someone claims discrimination, whether actual or perceived, the Board has a problem. It should consider notifying its insurance carrier about a potential claim. It may also wish to review its coverage to see if the policy provides defense coverage for a discrimination claim.
As to the room, it is part of the common area. Unless the organizational documents have a particular provision as to its usage, the Board has management control over it. It is a good thing that the association’s attorney is composing proposed rules for room use that will apply uniformly for all in the community.
Levine & Montana
1019 Park Street – P.O. Box 668
Peekskill, New York 10566