Massachusetts Preserves HOA and Condo Bans on Renting Out Your Unit

Section 15 was added to the room occupancy excise chapter as part of the 2018 short-term rental legislation, and the official text carries the note "[Text of section effective as provided by 2018, 337, Sec. 15A as added by 2019, 5, Sec. 37.]" Its function is a savings clause. When Massachusetts brought short-term rentals into the excise and registration regime, the legislature attached language making clear that the new tax status creates no property right. An owner who registers the unit, collects the state excise and any local option amount, and complies with every requirement of c. 64G still has no right to rent where a homeowner's association agreement, a rental agreement or any other restriction, covenant, requirement or enforceable agreement prohibits it. The savings clause is written broadly enough to cover both condominium documents and covenants running with land in a non condominium subdivision.

The Condominium Act does not counterbalance that. Chapter 183A runs from § 1 to § 24 and none of those sections addresses leasing by a unit owner. Massachusetts legislated expressly and in detail when it wanted to override condominium documents: § 10A gives owners an electric vehicle charger right that applies notwithstanding chapter 183A, § 24 authorizes remote meetings notwithstanding any contrary provision in a master deed, declaration of trust or by-laws, and § 23 overrides conflicting document provisions on mortgagee consent. It wrote no equivalent for leasing. There is no Massachusetts statutory grandfather for an owner who was already renting when a restriction was adopted, no statutory minimum or maximum lease term, no statutory ceiling on the percentage of units an association may cap rentals at, and no statutory percentage of owners required to adopt a rental amendment.

The association's power comes from the documents plus two ordinary provisions. Section 4(3) requires each unit owner to comply with the by-laws and with any administrative rules and regulations adopted under them, as amended from time to time, and with the lawful covenants, conditions and restrictions set forth in the master deed or in the deed to the unit. Section 11(e) requires the by-laws to contain restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas, not set forth in the master deed, designed to prevent unreasonable interference with the use of units and common areas by the several unit owners. Section 10(b)(5) supplies the sanction, authorizing reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations.

One genuine statutory limit does exist, and it is about who may be excluded rather than how many units may be rented. Section 12(c) permits the by-laws to give the organization a right of first refusal on the sale of a unit, exercisable within 30 days after written notice of intent to sell is given to the organization, and then adds: "provided, however, that this right shall not be exercised so as to restrict alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units because of race, creed, color, national origin or sex." Leasing is named in that list. The boundary Massachusetts drew around association control of unit transfers and tenancies is an anti discrimination boundary, not a numerical cap.

The practical question in most Massachusetts condominiums is how a rental restriction gets adopted, and here one section does help. Chapter 183A sets no owner vote threshold, so the threshold is whatever the master deed or declaration of trust specifies. Many Massachusetts condominium documents additionally require mortgagee consent before an amendment, which historically stalled amendments because lenders never replied. Section 23 solves that: where the documents require the consent of mortgagees before amending the deed, trust or by-laws, consent is deemed given if written notice of the proposed amendment was provided to each mortgagee holding a first mortgage on a unit, the governing body provided that notice by first class mail and certified mail return receipt requested, and the mortgagee fails to respond or object within 60 days of the date of mailing. Section 23 states that in the event of any conflict with the master deed, trust, by-laws or other governing documents, the section controls.

If leasing is permitted in your condominium, Massachusetts attaches a specific disclosure duty to it. Under the second paragraph of § 10(k), a unit owner who rents a unit to a tenant must designate a person or entity to oversee the maintenance and repair of that unit, and at the commencement of any tenancy must notify both the tenant and the organization of unit owners in writing of that person's name and phone number. The owner must also notify the tenant in writing of the name and phone number of the person or entity the organization has designated to oversee maintenance and repair of the common areas, and must send written notice of any change in either designation.

Enforcement of a Massachusetts leasing restriction runs through the association's ordinary tools rather than any specialised remedy. Section 10(b)(5) authorizes reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations, and the statute sets no cap on the amount and requires no hearing before the fine is levied. Unpaid fines become a lien on the unit from the time the assessment is due under § 6(a)(ii) and are enforceable in the same manner as a common expense assessment, with personal liability for collection costs and attorneys' fees under § 6(b).

Section 7 blocks the obvious response: no unit owner is entitled to an offset, deduction or waiver of charges lawfully assessed. Beyond money, § 10(b)(4) empowers the organization to conduct litigation on causes of action arising out of enforcement of the by-laws, administrative rules or master deed restrictions, which is how an association obtains an injunction against a continuing unlawful tenancy. The critical point for a short-term rental host is that compliance with the state regime is not a defence. Chapter 64G, § 15 says in terms that nothing in that chapter confers a right to offer a unit as a short-term rental where the use is prohibited by an association agreement or requirements, a rental agreement, or any other restriction, covenant, requirement or enforceable agreement, so a Department of Revenue registration and a record of remitted excise does not defeat the covenant.

Running the other direction, an owner challenging a restriction has one clear statutory ground: § 12(c) forbids exercising a right of first refusal so as to restrict alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units because of race, creed, color, national origin or sex. A restriction that operates as a proxy for one of those categories is attackable; a restriction that simply limits the number or duration of rentals is not, because Massachusetts wrote no numerical limit into chapter 183A.