New Hampshire Lets Condos Ban Rentals by 2/3 Vote

Read RSA 356-B looking for the word lease and you find leasehold condominiums, the declarant's leases, and RSA 356-B:46-a's rent-interception remedy for unpaid assessments. You do not find a limit on what the association may say about renting. New Hampshire never adopted the Uniform Common Interest Ownership Act, so there is no counterpart to the rental provisions other states inserted, and because the state has no general planned-community statute at all, a detached-home association here is governed purely by its recorded declaration.

That makes the amendment threshold the whole ballgame. RSA 356-B:34, II provides that once any unit is owned by someone other than the declarant, the condominium instruments may be amended only by agreement of unit owners of units to which 2/3 of the votes in the unit owners' association appertain, or such larger majority as the condominium instruments may specify, except where the chapter gives a different method. Votes are counted by the allocation in the instruments, not by heads, so a 2/3 threshold in a project with unequal unit interests is not the same as two thirds of the owners. Terminating the condominium outright takes more, 4/5 under RSA 356-B:34, I. RSA 356-B:34, III lets a project with no unit restricted exclusively to residential use, meaning a commercial or mixed condominium, specify smaller majorities than either figure.

Agreement must be evidenced under RSA 356-B:34, IV either by the owners executing the amendment themselves or by execution by the president and treasurer accompanied by a certification of the vote by the clerk or secretary, and the amendment takes effect only when it is recorded. If the instruments require mortgagee consent, RSA 356-B:34, II-a supplies an escape: the association may instead record an affidavit by its president stating that a written request for approval was sent to the mortgagee's last known address and that the mortgagee failed to respond within 60 days. Two boundaries apply. RSA 356-B:34, V forbids an amendment from changing unit boundaries, the undivided interest in the common areas, liability for common expenses, rights to common profits, or the number of votes appertaining to a unit, unless the chapter expressly permits it. RSA 356-B:34, VIII preserves any instrument requirement that mortgagees approve specified association actions.

A rental rule adopted by the board rather than by amendment stands on weaker ground. RSA 356-B:35, X allows the bylaws to provide for other necessary or appropriate matters, including matters that may be adopted as rules, but only subject to the declaration and the chapter, and RSA 356-B:6-a, I makes RSA 356-B control over a conflicting declaration or bylaw. A board that issues a leasing ban as a house rule when the declaration expressly permits leasing is acting outside the documents, which is a different and much better argument for an owner than any statutory rental right, because New Hampshire has none.

The genuine statutory limit on alienation is about sales. RSA 356-B:47, in force since September 10, 1977, provides that if the condominium instruments create any rights of first refusal or other restraints on free alienability, those rights and restraints are void unless the instruments make provision for promptly furnishing any unit owner or purchaser who requests one a recordable statement certifying to any waiver of, or failure or refusal to exercise, the right. If the association then fails or refuses to furnish that statement promptly in accordance with the instruments, all such rights and restraints become inapplicable to the disposition for which the statement was requested. The statement binds the association, the board, and every unit owner, and the instruments may require a fee of no more than $25 as a prerequisite to issuing it. Nothing in that section speaks to leasing, so it is a closing-table protection rather than a landlord's protection.

RSA 356-B:48 assigns administration and enforcement of the Condominium Act to the consumer protection and antitrust bureau of the New Hampshire department of justice, established in RSA 21-M:9, but the bureau's working powers under RSA 356-B:59 through 356-B:62 are aimed at declarants: investigations, cease and desist orders, and revocation of a condominium registration. It is not a forum for an owner unhappy with a leasing amendment. Those disputes are litigated. RSA 356-B:15, I makes non-compliance with the chapter or the condominium instruments grounds for an action for sums due, damages, injunctive relief, or any other remedy at law or in equity, brought by the association, its board, its managing agent, or by one or more aggrieved unit owners on their own behalf or as a class action, and RSA 356-B:15, II awards all costs and attorneys' fees to the prevailing party.

An owner challenging a leasing amendment therefore risks paying the association's legal bill, and should focus on whether the 2/3 threshold in RSA 356-B:34, II was actually met, whether the vote was certified and recorded as RSA 356-B:34, IV requires, and whether the restriction was adopted as a rule when the declaration reserved the subject to an amendment. On the sale side, an association that stalls on a RSA 356-B:47 waiver statement loses the right of first refusal for that transaction by operation of the statute itself, without a court order. Unpaid fines assessed for an unauthorized tenancy can reach the RSA 356-B:46 assessment lien if the instruments treat them as assessments.