Matthew Winton's Condo & HOA Blog

Limiting sex offenders by statute/covenant

Recently, the United States Supreme Court declined to hear a case from the 8th Circuit on whether a state may limit where a registered sex offender can live. Read the article. The case is Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), where the appellate court found that a state legislature could constitutionally limit where a sex offender could live.

What makes this significant is the assumption one might make from the high Court's silence: certain housing restrictions are left to the discretion of the state legislature. It does not take much foresight to see this translated into the community association setting (i.e., community association documents with language prohibiting sex offenders from owning or occupying property within a community association).

In fact, one New Jersey court has already adjudicated this issue in favor of restricting sex offender occupancy. See, Mulligan v. Panther Valley Property Owners Assn., 766 A.2d 1186 (N.J. App. Div. 2001) [Although, the court does note that they might have held differently based on different or more complete facts].

The debate is certainly going to heat up as more states, municipalities, and eventually community associations take active steps to limit the occupancy of sex offenders.

Matthew L. Winton
Vaughn & Winton PLLC
405.478.4818

Association elections; forms

Many homeowner associations, condominium associations, and community associations will be engaging in the election of directors for their board this fall. As many community associations gear up for fall elections, your association board might find the following information and forms useful.

In 2004, the legislature added subsection E to 18 O.S. 1060 to allow for the submission of electronic voting ballots. Without an abundance of provision, the legislature provided:

E. If authorized by the governing body, any requirement of a written ballot shall be satisfied by a ballot submitted by electronic transmission, provided that the electronic transmission shall either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the member or proxy holder.

Each board would need to determine what would constitute "information" sufficient to determine the ballot was in fact cast by a member or proxy holder. While electronic voting does pose some unique problems, allowing members to vote via email, fax, or other electronic transmission could allow the association to garner more participation from members than the association would otherwise.

Another helpful tool for elections may be the use of candidate surveys. For a sample, you can Download form_bod_election_survey.pdf . A survey allows the members to know a little more about a candidate before voting. In larger associations, the members might not know the qualifications of a particular candidate. The survey provides the member with information on which to base an informed decision.

A final tip regards the inspection of elections. For incorporated associations, Oklahoma law requires elections to be administered with at least one inspector. To read the applicable statute, click here. One provision in 18 O.S. 1075.1 requires inspectors to execute an oath of inspection. For a sample, you can Download form_inspectors_oath.pdf.

Matthew L. Winton, Esq.

Leasing Restrictions

For both new and old community associations the issue sometimes arises as to whether the owners within a condominium development or housing addition may adopt an amendment to restrict or limit occupancy and/or leasing within the development. From a national perspective, the answer is that a majority of state appellate courts have approved of such covenant amendments, even retroactive application. For Oklahoma, the question is maybe, because Oklahoma appellate courts do not report a case specifically deciding the issue.

The crux of the issue arises when owners seek to adopt an amendment to their covenants that would, say, limit leasing within the development to 10% of the total units. The purposes generally cited for such an amendment are: owner occupied units are generally more well-kept than tenant occupied units; the secondary mortgage market underwriting guidelines will not allow a loan to fund on property within a development with a certain percentage of leased units; owners generally demonstrate more participation within an association than tenants; etc.

In one Florida case, the court approves of an amendment limiting leasing within the addition, even application of the leasing restriction to owners holding title to their units prior to the amendment's adoption. The court states: We note that the majority of courts in other jurisdictions have held that a duly adopted amendment restricting either occupancy or leasing is binding upon unit owners who purchased their units before the amendment was effective. The court goes on to state that owners are on notice when they purchase their units that the covenants may change, and that there is no vested right in the status quo ante (meaning one cannot rely on the covenants remaining the same forever). To read the Jahren case for yourself, you may find it here. To read an unofficial transcript of the oral arguments, click here.

Interestingly, the Florida legislature "overturned" the appellate court with a legislative enactment providing certain parameters on the adoption of leasing restrictions. See, Florida Condominium Act, Section 718.110.

Matthew L. Winton, Esq.