Questions often arise when boards of directors revise or initially draft and implement their association’s rules and regulations. There are points to consider while going through this process. The board of directors generally has the authority to establish reasonable rules and regulations. While this authority is typically found in the restrictive covenants, in rare instances it may be found in the association’s bylaws or in the association’s articles of incorporation.
What are Rules and Regulations? Rules and regulations are legally enforceable governing documents that, generally speaking, clarify or elaborate on the other governing documents. For example, the restrictive covenants may state: “trash receptacles must be hidden from view of the street.” The rules and regulations could specify: “trash receptacles must be maintained behind the home, out of street view, and returned from the curb within 12 hours. However, the rules and regulations cannot go beyond the authority of the other governing documents and cannot conflict with the other governing documents or any laws.
Most association declarations have Rules and Regulations language similar to the following:
“Section 9. Rules and Regulations. In addition to the use restrictions set forth in this Declaration, reasonable rules and regulations governing the use of the Property may be made and amended from time to time by the Association. Copies of such regulations and amendments thereto shall be posted prominently prior to their effective date, and shall be furnished by the Association to all Owners upon request. Specifically, and not by way of limitation, the Association shall have the right to make reasonable rules and regulations governing the use of the common Amenities and any other Common Elements.”
Let’s dissect the prior section:
“In addition to the use restrictions set forth in this Declaration…” This language ties the rules and regulations to the declarations, the legally filed governing documents, thus giving rules and regulations the basis for legal enforcement.
“Copies of such regulations and amendments thereto shall be posted prominently prior to their effective date, and shall be furnished by the Association to all Owners upon request.”
Membership notification language is a key point of almost all declaration’s rules and regulations requirements. Since rules and regulations are usually not filed with the declarations and can generally be changed without membership approval; proper membership notification is vital for their enforcement. A defense of a court action resulting from rules and regulations violations could be that the member was not properly notified of the requirements of the rules and regulations per the posting requirements set forth. However, while this may not be a strong defensive position in most cases, it could be a reason that a judge would dismiss a legal action.
The prior language requires posting or displaying, while other declaration language may require changes or additions to the rules and regulations to be mailed to the membership. Some declarations may have notification language about having to mail rules and regulations to the membership annually or some other requirement even if there are no changes just to keep the membership informed.
“Association shall have the right to make reasonable rules and regulations governing the use of the common Amenities and any other Common Elements.”
The word reasonable is defined differently by everyone, but a great way of looking at reasonable rules and regulations are that the rules and regulations should be bounded by fairness, consistency and the avoidance of appearing arbitrary or excessive. A good way of considering the reasonableness of any rule or regulation is to imagine standing in court in front of a judge. Will this judge feel the board’s rules and regulations are reasonable, especially considering judges normally give the benefit of the doubt to the person being held to the standards that are written by someone else?
Key Points – Rules and Regulations
– Rules and regulations must be enforced uniformly and equally. For example, restricting children in violation of federal law.
– Only make rules that are necessary. An example here could be “no gambling in the clubhouse.” While listing something such as this under rules and regulations in all likelihood does no harm, gambling is generally a violation of state and federal laws so, if this issue were to come about, the illegal activity would be what would addressed when dealing with the matter. It is best to develop rules only if necessary.
– The rules and regulations must be based on proper authority. As noted above, do the association’s governing documents address developing rules and regulations or are we going to have to rely on state statutes, if any, to give our rules the ability to be enforced?
– Depending on your individual state statutes, or lack thereof, it may be necessary for the rules and regulations to provide for imposition of fines or penalties for the violation of the governing documents. If there is no provision in your governing documents or your state statutes, you may be unable to enforce your governing documents short of court actions. For example, a small claims court action may be necessary for someone not rolling their trash can in from the curb if there are no rules or statutes to backup the governing documents.
– Overstepping the authority of all the other governing documents. It occasionally happens that a new rule and regulation is proposed that cannot be enforced without amending the governing documents. For example, putting wording in the rules prohibiting commercial vehicles from the property. Unless there is a provision in the declarations that addresses commercial vehicles to this degree, this topic generally could only be addressed through the amendment process.
One final aspect of rules and regulations to consider is that what is set forth is what has to be followed. For example, in an attempt to make everyone aware of the violation process, a board of directors may wish to publish in the rules and regulations the process such as: “A member will receive three (3) warning letters for violating the rules and regulations before being called in front of the board of directors for a hearing.” While this may seem informative and good information for every member to have, what if a member does something of such a magnitude to warrant being called immediately before the board of directors? Whatever this may be, the rules and regulations have to be followed and, until revised, in theory the member could do this two more times before they are called before the board for a hearing. Another item to consider, setting fine amounts for violating certain governing document provisions. What if “disturbing the peace is $20” and a member sets off fireworks for several hours? It may be worth $20 to this member to set off fireworks for this dollar amount. While some governing documents may require specific wording on rules processes or even to publish fine amounts, attempting to contemplate what members can do in advance is challenging to say the least.
In conclusion, make rules in an attempt to ensure that each member can enjoy the community free from the harmful behavior of others. Attempt to make rules that do not necessarily punish, but make rules that encourage understanding and compliance. WDMC
Copyright – William Douglas Management, Inc. 2016