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Do our bylaws override zoning approval for a commercial unit? PDF Print E-mail
Sunday, 05 February 2012 20:57
Q. I currently live in a condo association that consists of four residential units and one commercial unit, which takes up the entire first floor.  In the past, this space has been used as professional office space, which is stated in our bylaws as the only purpose it can serve.  It is currently up for sale, and a buyer is interested in turning it into a preschool and after-school child care facility. 
They claim that the city approved the zoning for the space.  Would our bylaws, which state that the space must only be used as "Professional office space," override their zoning approval?  Even though the purchaser does not require our approval to purchase, is there something else that would protect us in this case?

A. Associations with hybrids are fairly common, meaning that there is both commercial and residential space.  When residential and commercial units are all part of the same association, each is governed, generally, by the declaration.  It is hard to provide a specific answer to the poster's question without reviewing the specifics of their association's declaration, so this is not legal advice. Declarations are a set of covenants and easements which run with the land.

Generally, a declaration may, in some circumstances, be a more restrictive covenant than local zoning ordinances, provided the declaration does not require anything unconstitutional or unlawful, in general.  In some cases, declarations can specify the type of activity that may occur in a commercial space, much like a residential space.  Many declarations prevent residential owners from operating a business in their unit, may specify rental or non rental use, and other restrictions.

If an association's declaration is legal and does not restrict a property's use unreasonably or contrary to state or local regulation, an association may be able to seek to enforce compliance, potentially even if the property may be used in that way in compliance with local ordinance.

It is important to note that the zoning status of the property and the declaration will both, hopefully, be disclosed by the seller when the commercial property sells.  Additionally, many commercial buyers often plan their business property purchases and, also hopefully, ensure that the property they intend to use in a certain way will be legal for the purpose.

In any event, the association should seek professional advice regarding the potential need to enforce its declaration or be certain that any representations the association makes about the property's use are under good advice. 

James Stevens, Condo Law Columnist
Nielsen, Zehe & Antas, P.C.

 

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