Section 1-A(8) - Hardship Exception to Leasing Restrictions

Section 8 gives the Board the power to permit exceptions to the Leasing Restrictions. While it may seem like a good idea to allow some fluidity to a leasing ban, there are many arguments as to why allowing the board of directors to determine what facts and circumstances will qualify an owner for a rental hardship exception is not a smart move. The most obvious reason is that the board will be put in a position of being lobbied by friends and neighbors seeking a hardship exception. Along with the authority to make such a decision comes the pressure of being asked to do it. There are no standards set forth in Section 1-A(8), only examples. How will directors decide who will be entitled to an exception and who will not? How will they compare one homeowner's woes to another? How will that evaluation vary from board to board? And is that really what our board should be spending its time doing? Hardship provisions could have been accommodated by more precise drafting rather than by giving the Board unfettered discretion to determine who has to play by the rules and who gets a pass.

As discussed in Section 1-A(5), this provision, while attempting to protect owners from hardship due to unexpected circumstances such as death or relocation, can instead open the door to many issues. In addition to potential issues of inconsistent enforcement, selective enforcement, and favoritism mentioned regarding exceptions for investors, exceptions under the additional leasing provisions will also necessitate the Board inquire into the personal lives of homeowners and could cause not only rife within the Board, but a drain on the resources and time of a volunteer board. Boards are often advised to either state clear, specific, and limited circumstances under which a hardship exception can be granted or eliminate all exceptions to avoid these types of issues.