Principled people promote presumptions — it’s a given — based upon belief about what is right and wrong. Presumptions are society’s foundation blocks, supporting its mission.

Two presumptions most regularly invoked, are: (1), the presumption of innocence to those charged with crime, and (2), the presumption of regularity, which presumes that a person trained and aware of the proper way to perform a job, acted with integrity in doing so. Because only contrary evidence expunges a presumption, social order prevails.

All too often, presumptions of regularity sail along on tranquil surfaces, while mischief’s murky matters build below. Hypothetical circumstances frequently serve to support the correctness of a courtroom evidentiary rule: “If circumstances lead me, I will find where truth is hid.” (Shakespearean play, you may know.)

In our imagined situation, two developers, planning a housing project, draw a non-profit corporation document, a deed and owner bylaws, before driving construction nails. Eventually, four buildings housing 40 units exist. Owners move in, and over a dozen years or so, comforted by their reliance upon the presumption of regularity in play, they begin encountering serious bylaw errors cropping up, including violations of the state’s building code. Owners decide to examine the presumption of regularity, in the same way a presumption of innocence is sometimes set aside by guilt of an offense.

Here, owners discover that state law provided that “only unit owners may adopt and amend bylaws.” Thus, the two developers unlawfully usurped the owners — not only wrongfully standing in their shoes, but in some circumstances, doing so illegally.

Woe to the owners — they have no valid bylaws.

What to do? Developers are dead. The housing project is in dire financial straits due to maintenance woes.  The owners of units are unable to fulfill a legal requirement to provide new owners with bylaws.

Aren’t we glad it’s hypothetical!

 

John Benoit

Manchester  

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