Connecticut Rental Bans Need an 80% Vote and Must Protect Existing Renters

Start with what Connecticut boards may do without amending anything. Section 47-261b(f) limits association rules that affect the use of or behavior in residential units to three purposes: implementing a provision of the declaration, regulating behavior or occupancy that violates the declaration or adversely affects other owners' use and enjoyment, and restricting leasing. The leasing branch, subdivision (3), is deliberately tied to lending rather than to lifestyle. A rule may restrict leasing only to the extent it is reasonably designed to meet the underwriting requirements of institutional lenders that regularly make loans secured by first mortgages on units in common interest communities or regularly purchase those mortgages. That is the Fannie Mae and Freddie Mac owner-occupancy problem written into statute, and it is the only justification the subdivision accepts. A cap adopted because the board dislikes tenants is not within it.

Subdivision (3) also carries a recording condition that Connecticut boards frequently miss: no such restriction shall be enforceable unless notice of it is recorded on the land records of each town in which any part of the common interest community is located, and the notice must be indexed by the town clerk in the grantor index in the name of the association. A leasing rule sitting only in the minutes or a handbook is unenforceable by the plain terms of the statute, no matter how it was voted.

A broader restriction belongs in the declaration. Section 47-224(a)(12)(A) requires the declaration to contain any restrictions on alienation of the units, including any restrictions on leasing that exceed the restrictions an executive board may impose under section 47-261b(f)(3), and section 47-224(b) confirms the declaration may contain restrictions on the uses of a unit or the number or other qualifications of persons who may occupy units. That is the mechanism by which a Connecticut association reaches a hard cap, a minimum lease term, a waiting period or a flat ban.

The vote to get there is the real protection. Section 47-236(a)(1) sets the general amendment threshold at unit owners of units to which at least sixty-seven per cent of the votes in the association are allocated, unless the declaration specifies a larger percentage or a smaller one that is not less than a majority. Section 47-236(f) then raises the bar for exactly the kind of amendment a rental restriction is: an amendment 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, only by vote or agreement of owners of units to which at least eighty per cent of the votes are allocated, unless the declaration demands a still larger percentage. The same subsection contains Connecticut's grandfathering rule in one sentence: an amendment approved under it must provide reasonable protection for a use or occupancy permitted at the time the amendment was adopted. An owner already leasing when the amendment passes is entitled to reasonable protection, though the statute leaves the shape of that protection to the amendment rather than fixing a term of years.

Timing and recording finish the picture. Under section 47-236(c) every amendment must be recorded in every town in which any portion of the community is located and is effective only on recordation. Under section 47-236(b) no action to challenge the validity of an amendment adopted under the section may be brought more than one year after the amendment is recorded, so an owner who believes a rental amendment failed to hit eighty per cent has twelve months from recording, not from the vote. Section 47-236(j) supplies a release valve in the other direction: where a declaration requires more than eighty per cent, an amendment can still be deemed approved if more than eighty per cent vote for it, no owner votes against it, and no owner objects in a record within thirty days of notice, or if the Superior Court finds that objecting owners do not hold a unique minority interest the supermajority was meant to protect.

One applicability trap is specific to older Connecticut communities. Section 47-216(a) lists the CIOA sections that apply to common interest communities created in this state before January 1, 1984, and for section 47-236 it lists only subsections (b), (d), (i) and (j). Subsection (f), the eighty per cent requirement with its grandfathering sentence, is not on that list. Owners in a Connecticut community recorded before 1984 therefore cannot assume the eighty per cent threshold applies to a leasing amendment; the declaration's own amendment clause governs unless the community brought itself under the chapter through section 47-218. Section 47-261b, by contrast, is on the section 47-216(a) list, so the lender-underwriting limit and the recording condition on leasing rules do reach pre-1984 communities.

There is no fine and no state agency that polices a bad rental restriction in Connecticut; the consequences run through enforceability and through the courts. A leasing rule adopted outside the lender-underwriting purpose in section 47-261b(f)(3), or adopted for a proper purpose but never recorded on the land records of each town with indexing in the grantor index in the name of the association, is unenforceable by the express words of the subdivision. A rule adopted without the ten day advance notice and text required by section 47-261b(a) is exposed as well, since the Connecticut Supreme Court held at 321 Conn.

29 that association rulemaking requirements are jurisdictional and that failure to follow them is a jurisdictional defect. An amendment that materially restricts occupancy but drew less than eighty per cent of the votes is open to a validity challenge, but only for one year after recording under section 47-236(b). Going the other way, an owner who leases in violation of a validly adopted and recorded restriction faces the association's ordinary enforcement powers under section 47-244, including a penalty imposed only after notice and an opportunity to be heard, and unpaid charges become part of the association's statutory lien under section 47-258. Both sides litigate in the Superior Court for the judicial district where the community lies.