Drafting Association Rules
Rules and regulations are regulatory imperatives that are derived from the authority of the Association. Rules can be enacted by the Board of Directors and may be imposed on use or occupancy within the lots if that use (i) violates the declaration, or (ii) adversely affects the quiet use and enjoyment of other lots. Since rules protect owners' property and peace of mind, they are one of the most important aspects of a well-run community.
Put Community First
Bearing in mind what is acceptable to the community is an essential component in making and enforcing rules. Putting the community first should always be the Board's priority. To be effective, rules must be accepted by the community, and obeyed & enforced easily and efficiently. Indeed, rules are necessary only to the extent that people are contributing to, sharing in, and benefiting from use of the resources owned in common on an equitable basis in a community.
Making and enforcing rules is a process best approached by simply being reasonable. Boards should be flexible enough to allow rules to be changed and even rescinded as the needs and interests of the community evolve.
- Rules get their authority from the association's enabling statutes and governing documents.
- Enact rules only when they are necessary. Regulate as few activities as possible.
- The Association should be fair and reasonable and act in the best interests of the community when enacting and amending rules.
- The process of drafting rules requires:
- identification of the problem
- a need for the rule
- research of enabling laws, association documents, existing association rules, and previous association actions
- preparation of the proposed rule.
- circulate the proposal to owners and residents and allow them to comment
- discuss the rule at an open meeting
- publish the final rule before its effective date
- regularly review and consolidate amendments.
The first step in ensuring effective enforcement of a homeowner association's rules and regulations is the promulgation of clear and enforceable rules and regulations. Poorly drafted rules and regulations will be difficult if not impossible to enforce no matter how diligently the community manager or the association board of directors investigates and pursues reported violations. Accordingly, the following suggestions may help you to maximize the effectiveness of your homeowner association's rules and regulations:
Precatory Language - Wishful Thinking / Encouraged ConductRules must be drafted so that they regulate the prohibited conduct and provide the members with notice of what constitutes a breach thereof. For example, if a proposed restriction provides that members "should not engage in ...........", or "should try to......", the specified conduct is not actually prohibited or compelled but only suggested or discouraged. As such, an association may have no recourse should the members engage in the discouraged conduct. In order to avoid this situation and provide an association with the tools necessary to govern the conduct of the members and enforce desired restrictions, appropriate language either prohibiting or compelling the subject conduct should be used. For example, "members shall not ...." In so doing, the association clearly advises the members as to what conduct constitutes a violation and in addition gives the association the ability to effectively address such violations.
Redundancy - Unnecessary / Improper Subject MatterRules should be drafted as clearly and as simply as possible. Excess language makes for lengthier and more complicated rules and regulations which in turn increases the difficulty in enforcement as well as the expense to the association. Accordingly, redundancy should be avoided.
- a. Prohibition of Illegal Conduct - It is redundant and unnecessary to prohibit otherwise illegal conduct within a homeowner association's rules and regulations. For example, a rule prohibiting the sale of narcotics in Association common areas is unnecessary and improper. This is one of the areas which should be left to local law enforcement agencies. The promulgation of rules and regulations regarding this type of conduct may lead to claims regarding the Association's failure to enforce same, as well as substantial liability and risk of personal injury or death.
- b. Reassertion of Restrictions Contained Within the CC&Rs - More is not necessarily better. There is a presumption that restrictions recorded within an Associations governing declaration of CC&Rs are reasonable. As such, a restriction contained within the recorded CC&Rs is more easily enforced and more difficult to judicially challenge than a rule or regulation later promulgated by the Association's board of directors. Accordingly, there is no need or benefit to subsequently reasserting restrictions already contained within an Association's CC&Rs in the rules and regulations.
Conduct Specific - Rules Should Address Specific Target ConductRules should be conduct specific and should directly address the particular behavior for which they are promulgated. While this may seem redundant, oftentimes rules are promulgated so as to indirectly restrict the subject conduct as opposed to directly addressing it. This may have the unwanted effect of being over or under inclusive under certain circumstances. For example, if a rule is promulgated for the purpose of prohibiting certain types of dangerous or aggressive dogs, it should be drafted so as to prohibit aggressive dogs as opposed to the promulgation of a rule prohibiting dogs over a certain weight. A simple weight restriction may be overly broad in that it would restrict large, non-aggressive types of dogs and may not restrict certain smaller but extremely aggressive types of dogs. A great example is a pit bull terrier.
Ambiguous ProhibitionsRules must be drafted so as to enable an association to objectively evaluate the prohibited conduct and determine whether or not there has been a violation of a particular rule. For example, a poorly drafted rule might provide that "Members shall not engage in loud activities in the association common areas". Such a rule necessarily begs the question of what is contemplated by the term "loud activities"? This rule would be difficult if not impossible to effectively evaluate or enforce. A better rule would set forth specific conduct which is prohibited, thereby providing the members with notice of the conduct restricted by the rule and in addition providing the association with an objective criteria for evaluating member conduct.