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Providence Business News, June 14, 2010

In its recent article, �Condo Covenants Seen as Impeding Green Projects�, the reporter pointed to the clash between condominium rules and regulations governing the use and appearance of condominium projects and efforts to foster energy conservation measures.

At the heart of the controversy is the venerable clothesline, once a staple in backyards, at least until dryers became ubiquitous.

It is not uncommon for condominium rules and regulations, or homeowner association rules, to prohibit clotheslines outright. And if not prohibited, they may be significantly restricted as by size, location, and hours of use, or require screening from public view.

The primary argument against clotheslines is aesthetic�seeing someone�s underwear and socks flapping in the breeze may not present the best picture of the development, or perhaps even of the homeowner airing their laundry.

And many property owners see that aesthetic as being directly related to reduced property values.

On the other hand, energy conservationists argue that dryers consume approximately 6% of household energy use and contribute to increased greenhouse gas emissions, said to adversely impact global climate change.

A handful of states, most recently Maryland, have passed so-called �Right to Dry� laws, preventing municipalities or residential associations from banning clothesline. As the PBN article noted, similar legislation is now pending in Rhode Island. (S 2522)

The argument made is that Right to Dry legislation is primarily about energy conservation and renewable energy resources to help protect our environment.

However, as an attorney who practices both environmental law and real estate law, I see this as an argument primarily over property rights.

The essence of condominium ownership is that it is shared ownership. Unlike the traditional home ownership arrangement, where the owner holds exclusive fee simple title to the entire property, both the land and the house, the condominium owner holds title to his condominium unit, and owns the remainder of the property, the �common elements� in common with other owners of condominium units.

In the traditional apartment style condominium, the unit owned may be a three bedroom unit, and the common area may be walkways, lawn area, swimming pool, tennis courts, and driveways. The unit owner is entitled to exclusive use and occupancy of his �apartment� unit and shared use of the common area.

The benefit of condominium ownership is that it often allows people to live in better locations with more amenities than they might otherwise be able to afford by buying a single family house, and maintenance obligations are shared, often reducing the burden on the individual unit owner.

Because of this shared-use concept, condominium developments are generally encumbered with rules and regulations to govern the use and enjoyment of the property for all of the owners. For example, a unit owner cannot park his boat and trailer in the middle of the courtyard or use common parking areas to start an auto repair business.

And yes, clotheslines are often prohibited.

Under the legislation pending in the Rhode Island General Assembly, no condominium association rules and regulations could prohibit the installation of clotheslines, solar panels, gardens or other devices based on renewable resources.

So, if passed, one unit owner could set up his own garden while another could install solar panels and a third could set up a clothesline, all on the condominium property.

And this is regardless of what the other owners wanted

This is the heart of the property rights issue. Each unit owner purchasing a condominium knew it was giving up certain rights to live in a condominium. It knew it would be subject to rules and regulations, which generally are set by the majority of unit owners. A unit owner has every right to seek to overturn a rule, or be exempted from it, or persuade others to revise the rule.

But on its own, an individual unit owner does not have the right to unilaterally change the rule or disobey it with impunity. Ultimately, if you don’t like the rules, you have the option of moving.

Now enter the government, which, if this legislation is passed, could be telling all unit owners what they must accept on property in which they have an ownership interest.

By definition, it would appear that the government would be forcing most property owners in many condominium projects to allow something on their shared property that they do not want. Because a majority can generally amend the rules if they wish, if a majority wanted clotheslines, they would be allowed.

Do clotheslines really rise to the level of importance that our government should be mandating that the majority of owners in a condominium project who may not want them on their property must accept them?

Is the threat of rising sea levels actually directly linked to restrictions on clotheslines in condominium projects, as one commentator in the news report suggested, requiring the government to override the will of those who live in condominium projects?

This may be a case where the government should limit itself to airing the issue and let the property owners decide whether or not to air the laundry.

*Mr. Boehnert is a Providence attorney engaged in the practice of real estate and environmental law.

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