Coming Home: Homes and Condos Fill Up with Family Members, Creating Legal and Ethical Dilemmas

By Frank A. Lombardi, Esq.

Someone once said that “Home is the place that you go where they have to take you in.”

Given today’s still uncertain economy, those words are ringing true in Providence and beyond.

With the onset of the Great Recession, the world’s most powerful economy went into a deep and extended contraction and correction. As a result, millions of people have lost jobs and experienced a catastrophic loss of equity in their homes, if not an out-and-out loss through foreclosure or short sales.  And so, scores of family members, both young and old, are coming home.

By “home,” I mean that place where 60- to-80-something seniors are living with their 30- to-40-something children, who in turn, are living with their infant, pre-teen and teenage children as well.  Throw in aunts, uncles, and cousins with their significant others, and you have some or all generations of a family living under one roof.

All this creates legal and ethical dilemmas. 

A quick reference to history reveals that multi-generational homes were actually the norm.  After World War II, we began to see the advent of single- or dual-generation homes with mom and dad and 2.5 kids living in single standing homes or apartments. Later, with the economic boom, the houses became so big they were called “McMansions.” Gone were the days when grandma or grandpa, or even the aunt, were present in the household from birth to death. In most cases, the extended family became contracted.

New Circumstances, New Challenges
I don’t know whether there will ever be a return to the McMansion housing phenomenon, but for now, I am seeing the beginning of a great shift of people into multi-generational households where grandparents, uncles, and cousins are living together.  Since a good part of these homes are condominiums, this merits a special discussion.

A first scenario: an association that prohibits leasing. But what if the unit owner’s mother and father move into the unit and the unit owner gets a job transfer and moves out? Are these parents who are left behind tenants? Unless they are paying rent, I would argue that they are not. Suppose more relatives come to live in the unit. In that situation, associations may consult with the zoning ordinance, which may have a limit of occupants per bedroom. I would tread carefully on this issue, though, as attempting to remove these people or fine their unit-owner relatives may trigger state and/or federal regulations prohibiting discrimination on familial status.

A second scenario:  a 40-year-old son who comes to live with his parents. After a messy divorce, he is granted custody of his three children, 8, 10, and 15. The 8-year-old makes several colorful drawings on the street to play hopscotch and leaves her bicycle on the next-door unit owner’s driveway. The 10-year-old loves to work on his basketball dribbling skills on the wooden rear deck and enjoys his portable basketball hoop apparatus. And, of course, the 15-year-old hangs around the clubhouse pool with his school friends.

The board should check its documents carefully and use common sense when enforcing the nuisance and quiet enjoyment provisions within their documents. Also, the provision prohibiting activity that would expose the association to increased insurance premiums could be invoked. To be sure, due to economic reasons, these children won’t be going elsewhere anytime soon. So, the board has the unenviable task of balancing the need for protecting the quietude of the entire association versus the need to let kids be kids.

Perhaps the community should take extra steps to embrace these children as their own. This may try the patience of many unit owners, but perhaps a live-and-let-live approach would work best.

A third scenario:  the unit owners owe assessment arrearage, and their son is in Afghanistan, while their daughter-in-law moves in with two children. The collection action begins, and the board — or its attorney —wrestles with this question: Does the Soldier & Sailor Relief Act govern here, which would necessitate a delay in collection proceedings until after the soldier returns? Again, the board should be deliberate and tread lightly here due to the possible penalties involved. But, on the other hand, the board needs to balance the need for funding with the civic duty to accommodate the nation’s soldiers and their families. That may be easier said than done when the wife’s Mercedes is now parked in the driveway.

A final scenario:  a unit owner’s widower dad formerly lived with his daughter, but the daughter lost her house, has to take a job in another state, and can’t take him with her. On her way out of town, the daughter drops dad off at his son’s (her brother’s) condominium. The son and his wife work all day.  Dad has Alzheimer’s and is frequently roaming the grounds. As the situation is very delicate, the board should meet with the family and simply review their plans about dad and gently remind them that the association is not dad’s caretaker, nor should it be. But, regardless of a lack of formal obligation, if a member of the condominium association sees dad wandering around looking lost, at the very least there should be a call list available for someone to contact the son.

The above four scenarios are just the tip of the iceberg. There are and will be many others, so boards would be wise to do a thorough review of their policies and documents to determine whether there are provisions therein to address these issues.

Rules, Regs, and Realities
If the documents do not contain appropriate regulations, the R.I. Condominium Act may be of assistance:

RIGL 34-36.1-3.02 has a catch-all provision, subsection 17, which states that the association may exercise any other powers necessary and proper for the governance and operation of the association. That is, if the general operational and management provisions within that statute do not fit the fact pattern presented, then subsection 17 can be used. Boards should anticipate these issues and deal with the unit owners and their families with a light touch, as for some this may be new ground.

Maybe home should be where the heart is.  In this light, common sense, compassion, and understanding should be the mantra in dealing with this new population change as our day-to-day lives adjust to economic reality.

Need more advice coming to grips with “coming home”?  For more information on this topic and other legal issues, contact us.