Bases for invalidating condo association decisions

Because it was hard to hear and to take notes in our class in the park on 13 April, I am summarizing what I said about four bases pursuant to which a reviewing court could invalidate condo association decision. These bases would be available under most of the theories for review, and are derived from administrative law.

  1. The decision was ultra vires. The challenger would argue that the condo association lacked the power to make the challenged decision, either because the condo declaration did not give the association to make a decision of that type (for example, the declaration gave the power only to make rules for use of the common areas and the decision relates to use of an invidual unit) or because the declaration conferred power only to make "reasonable" rules and the challenged rule is unreasonable. Such a challenge also might proceed from the argument that an applicable statute negated the asserted rule-making power. In any event, a successful challenge on this basis would proceed from scrutiny of the applicable legal texts (the declaration and any applicable statute) and persuasiveness on the interpretation of the text advanced by the challenger. The competing arguments between Mr. Attaway and Mr. Al Tahry are examples of this kind of challenge.
  2. The decision was unconstitutional. A rule that discriminated based on a suspect classfication such as race or protected activity such as political speech would be subject to challenge on this basis.
  3. The decision was irrational (arbitrary and capricious). A challenge on this basis would succeed if the challenger could show that the association made a factual decision unsupported by facts, or that it did not reveal logical connection among law, established facts, and the conclusion.
  4. The decision was not arrived at through reasonable procedures. A challenger could succeed on this basis by showing that the burdened unit owner received no notice that a decision was about to be made and/or that the owner was not given a reasonable opportunity to present reasons why the decision should not be made.

Good lawyers can challenge the same decision on more than one basis. For example, a procedurally flawed decision, is unlikely to have been authorized by the declaration. Likewise, it is unlikely that the drafters of the declaration intended to authorize irrational decisions.