Zen and the Art of Rule Making
When a new community is being developed, the developer creates a vision of what that community should be both now and into the future. As the community ages and the owners come and go, that vision of the community may change to fit the current owners. Rules are one mechanism that allow the community to create and/or maintain their vision of the community.
The rub for most community associations is...what is the vision and how do we create rules to maintain that vision? For a moment, let's wander off course and talk about vision before we get back to rules. Normally those in power, in this case the Board of Directors, set the vision. If the Board is doing their job well, they set a vision according to the views of the community, not just the few members who serve on the Board. The vision must adapt to the changing views of the community, as well. An example of this would be when a community's population is undergoing a change from an older demographic to include more young families with children. The older demographic might have been content with the "No Playing in the Common Area" rule but the younger demographic will not. There is no right or wrong answer to setting the vision but it is an important discussion to have before getting into the finer details of the rules.
The authority to make rules is usually granted by the association's CC&Rs but subject to the hierarchy of the governing documents and law. This means that a rule first must comply with the association's governing documents and all local, state, and federal laws for it to be valid. Beyond complying with documents, rules also must be reasonable to be enforceable.
It is usually not the legality of the rule that trips up Boards, rather it's an unreasonable rule. This is where rule making gets sometimes tricky. What exactly do we mean by being reasonable? Again, there is no exact answer but if your association wants to tear down all the units because they need to be painted, would you think that is reasonable? Of course not, but how would you feel about a rule that prohibited kids from playing in the common area?
There are several things to consider when trying to evaluate your rule making and whether it is reasonable. First, is a rule even necessary? You don't want rules that aren't ever needed, nor rules that aren't enforceable. Second, does the rule target a particular group? A rule that has a disproportionate effect on a particular group can appear to be discriminatory in nature. For example, in some of our more ethnically diverse communities, associations have considered a "no shoe by the front door" rule. On the face, the rule seems reasonable, but if the community consists of a large Asian or Muslim population, the association might create a rule that is more sensitive such as "shoes by the front door must be stacked neatly on a rack". Third, the rule must have a uniform mechanism of enforcement. Don't create a parking policy that is only enforced in one corner of the community because that is where a Board member happens to live. Finally, rules are meant to be broken. The Board needs to be flexible to accommodate the needs of the residents. In many cases, not only should it be flexible, but it is required to be - - as in complying with the Americans with Disabilities Act.
Board Members are fiduciaries of the association's vision. Their rule making should enhance the vision and not destroy it. It is therefore wise to communicate with the membership about the interpretation of the association's vision and rules as frequently as possible.
Rob Rosenberg, CCAM®, Association Times, March 2007