Too many associations have rules that are unduly complicated, are nearly impossible to enforce and may even violate laws. Let us point you in the right direction.
A high-rise condominium in the Washington, D.C., area once tried to prohibit residents from flushing their toilets between 10 p.m. and 6 a.m.
Among the pantheon of bad community association rules, it ranks pretty high up there.
For starters—and really, it should go without saying—the proposed rule wasn’t reasonable, notes Ellen Hirsch de Haan, an attorney with Wetherington Hamilton in Tampa, Fla., and a CAI past president.
“The constitutional argument is a rule has to have a rational basis and a reasonable connection to the scope of the association’s authority,” she says.
In addition, notes de Haan, a member of CAI’s College of Community Association Lawyers (CCAL), enforcing the no-toilet-flushing rule might have proved to be a challenge. “If you heard water, how would you know where it was coming from?” she asks.
The condominium isn’t alone in its questionable attempts at rulemaking.
Rules and regulations should clarify provisions in governing documents and help regulate behavior and property use, but many associations adopt rules that conflict with their own documents, are unduly complicated, nearly impossible to enforce and may even violate laws. Some churn out reams of rules to settle simple beefs between individual owners when no rule is needed. Then there are rules that are so outdated or so vague that compliance isn’t possible. Rules can be too general and can embroil the association and its owners in unnecessary disputes.
“Rules regarding towing, pets, rentals and smoking can be particularly controversial,” says Steven S. Weil, a partner with Berding & Weil in Walnut Creek, Calif., and a CCAL member.
It’s OK to create new rules—these days, associations are beginning to regulate owners’ external security cameras, drones and marijuana—but they must follow a certain set of guidelines to pass muster (See “In with the Good”).
Good rules are consistent with applicable laws and governing documents and are formulated after getting community input. They’re put in writing, distributed periodically and summarized in the association newsletter and on the HOA website. They also should be unambiguous and relatively easy to follow. Lastly, good rules should enhance the community and boost property values.
So where do associations go wrong?
The Vague and Unenforceable
Associations sometimes fall into the trap of creating rules that are too ambiguous to be enforceable, notes de Haan, who is currently reviewing rules for a number of associations.
For example, if you make a rule that all homes must be painted in earth tones, what does that mean? Is an earth tone any color that exists on this planet? “The sky is blue, so that is arguably an earth tone,” de Haan says.
Gary Daddario, an attorney with Winer and Bennett in Tyngsboro, Mass., and a CCAL member, says rules about noise that don’t identify what’s “excessive” can prove to be problematic too. He recommends stating, for example, “Residents are not allowed to create noise that can be heard in the common areas or other units between the hours of 11 p.m. and 8 a.m.” Some associations describe unacceptable decibel levels.
Associations also run into trouble when trying to regulate pets. Rules about dog weight limits can be problematic because most managers have more important things to do than weighing animals as they walk through the lobby. And many large dogs—think Great Danes—can be very docile, while a little Chihuahua can be quite scrappy.
“It’s often not about the size of the dog, it’s about the nature of the dog,” says Lucia Anna “Pia” Trigiani, an attorney with MercerTrigiani in Alexandria, Va., a CCAL member and author of Reinventing the Rules: A Step-by-Step Guide for Being Reasonable. “I prefer to address conduct of the dog—and actually, it’s often not the dog, it’s the owner.”
The Cookie Cutters
Some associations are stuck with rules instituted in the community’s deed by the developer; these cannot be changed without a full membership vote.
Fairfield Harbour Property Owners Association, a community with 2,824 condominiums, townhomes and single-family homes in New Bern, N.C., is divided by a highway; homes on one side of the road front the water.
Since the community was developed, homeowners who front the Northwest Creek and Neuse River could not keep RVs, boats or trailers on their properties; owners across the street could. In 2006, waterfront property owners asked to change the rule, but the community-wide vote failed “decisively,” says Mystré D. Van Horn, CMCA, AMS, Fairfield Harbour community manager.
A developer’s cookie-cutter approach to rules—inserting another community’s rules without making changes—also has led to some oddities.
A Fort Myers, Fla., high-rise condominium recently asked attorney Joseph E. Adams, a managing shareholder with Becker & Poliakoff and a CCAL member, to review its rules and regulations. He found a “no fishing in the lake” rule despite the fact the property had no lakes.
Some rules are simply musty or outdated.
In the 1970s, pickup trucks were driven primarily by contractors, and many people didn’t want a plumbing truck parked in front of their home all day. Today, a rule banning all trucks may seem antiquated when some homeowners may have king-cab rides costing as much as $80,000. Adams says truck parking is still one of the “hot topics” in Florida condominiums.
Meanwhile, many Fort Myers condominiums built in the 1970s have rules that state “no servants shall congregate in the common areas.” Some associations haven’t updated their documents in decades, says Adams. “It makes we wonder whether butlers and maids hanging around chatting in the stairways was ever really a problem to begin with.”
The Legal Liabilities
Rules that don’t factor in the community makeup or restrict certain people can be discriminatory, particularly those that ban children from common areas and other places.
In 2010, faced with complaints that people were getting “splashed,” Van Horn says a Brunswick County, N.C., starter-home community she managed barred children under 18 from using the pool from 5–10 p.m. so it could be “adult-only.” She advised against the rule, but it was instituted without discussion and quickly caused an uproar. It was repealed after 45 days.
Van Horn recalls another problematic rule while managing a gated single-family home community in San Antonio. In an effort to collect late assessments, the association denied delinquent owners access to the community. Van Horn warned that the rule would be challenged. The community was sued and lost; the management company was indemnified because Van Horn was on record in meeting minutes saying her company advised against the move.
Other associations overstep boundaries. A Florida condominium de Haan advises once tried to pass a rule prohibiting dog walking on county-owned land outside of its walls. Another crafted a rule that said the board would enforce all city and county ordinances and state and federal laws. “Of course, they have no authority to do that,” de Haan explains.
State and federal laws can impact the scope of an association’s authority and whether current rules are still applicable.
Bans on satellite dishes became outdated thanks to the Federal Communications Commission’s Telecommunications Act of 1996, which says homeowners can have a satellite dish no larger than one meter in diameter as long as the homeowner has exclusive use and control on the property. Similarly, associations used to be able to prohibit clotheslines, but Florida and other states ruled associations can restrict where the lines are placed but cannot ban them.
Technology and marijuana are just a few areas giving rise to new rules.
Some communities are starting to address the use of drones, especially as real estate agents begin to receive Federal Aviation Administration approval to use them to photograph home exteriors.
“In a multi-residential setting, these apparatus pose privacy and safety concerns,” Adams says.
The increase in homeowners installing external security cameras has spawned rules from neighbors concerned about their privacy too. Adams says a single-family homeowners association in Fort Myers adopted a rule that the line of sight on security cameras has to stay within the owner’s property boundaries.
Marijuana also is a hot topic since several states have legalized it for recreational or medicinal purposes.
Some Colorado condominiums have banned smoking marijuana within units by adopting an amendment to their governing documents, which requires a high support threshold for owners. Most communities likely will have to treat marijuana smoke much like they do tobacco smoke—addressing concerns over seepage into a neighboring unit. (Read “Going to Pot” in our last newsletter for a complete overview on the topic.)
In with the Good
When creating new rules, whether they address marijuana, drones or tried-and-true subjects like pets and parking, boards need to make sure the rules are consistent with and enforceable under state laws, federal laws and the association’s governing documents. They must be objective, reasonable, specific and easy to follow.
The first step associations should take is an introspective one, says Lucia Anna “Pia” Trigiani, an attorney with MercerTrigiani in Alexandria, Va., and a member of CAI’s College of Community Association Lawyers (CCAL). She recommends boards answer the following: Is there a need for the rule? What problem are you trying to correct? Can the rule correct it?
When you’re ready to write a rule, consider using the active voice rather than passive; tell owners what they should do instead of what they shouldn’t. Also consider briefly explaining the reason for the rule. For example, Ellen Hirsch de Haan, an attorney with Wetherington Hamilton in Tampa, Fla., a CAI past president and CCAL member, says, “Park your car head in to avoid damage to the landscape” is better than “NO backing of your car into parking spaces.”
Before adopting a rule, associations should seek expert opinion, communicate the challenges and proposed solutions to members, and seek their input, if not consent. Consider polling or surveying residents.
“Hold town hall meetings, if necessary, and explain the rule in simple terms, without legalese,” advises Mystré D. Van Horn, cmca, ams, manager of Fairfield Harbour Property Owners Association in New Bern, N.C.
Trigiani, author of Reinventing the Rules: A Step-by-Step Guide for Being Reasonable, says it’s good to ask owners about rules. However, she cautions boards to be wary of owners trying to formulate rules—and using the association as their “personal whipping boy”—to solve every problem they have with their neighbors.
There isn’t a correct number of rules an association should have, but it is possible to have too many. A high-end condominium de Haan advised had a 35-page rulebook with few graphics and almost every rule starting with the word “NO.”
“That rule book was ignored by everybody universally,” she says.
Michael C. Kim, an attorney with Michael C. Kim & Associates in Chicago and a CCAL member, says the key is to look at the culture and the attitude of the community. “In smaller associations where there aren’t really a lot of facilities and the property isn’t that complicated, there really shouldn’t be a lot of rules,” he says.
Kim notes that some large-scale condominiums have very detailed and extensive rules, which can be daunting for owners. “From a personal perspective, I’m not sure I’d want to live there because everything you do, you have to look at the rulebook and say, ‘Can I do this or not?’
Out with the Bad
So, you have a bad rule? Can the board simply strike it from the books or is there a process that must be followed?
The answer may turn on the association’s governing documents and applicable state laws. In California, generally, associations need to notify owners and seek their comments before adopting a formal change, says Steven S. Weil, a partner with Berding & Weil in Walnut Creek and a member of CAI’s College of Community Association Lawyers. Boards might not need to give prior notice if a rule simply reaffirms a state law, but it’d be a good idea regardless, Weil adds.
“Whether providing members notice is required, in many cases, soliciting input before a change is wise,” says Weil.