Part III Rule Development & Enforcement- The Do's and Don'ts
Continuing on with our series on Rule Development and Enforcement for Communication Associations, this week we delve into the do's and don't's of Rule Development, along with adoption and implementation procedures.
Criteria for a Valid and Enforceable Rule: Generally speaking, the courts recognize the following list as characteristics of a valid rule. In addition, people are more likely to accept and cooperate with rules that meet these characteristics.
The six criteria for careful rule development are:
- The rule must not violate a fundamental constitutional right.
- The rule must be consistent with applicable federal, state and local statutes and the community association’s governing documents.
- The rule must reasonably relate to the operation and purpose of the community.
- The rule must be reasonable. A reasonable rule is one that is just, sensible, and not excessive.
- The rule must be fair. It must not create a separate class or group of people. (For example, a rule that treats resident owners and nonresident owners differently.).
- The rule must be capable of uniform enforcement.
- The rule must be uniformly enforced – this means there must be no selective enforcement or exceptions.
- The rule must be necessary. Do not make rules as a knee-jerk reaction to a single instance that has little possibility of recurrence.
When in doubt about the legality of a rule, consult an attorney. It is always a good idea to have your community’s attorney review the wording of all rules and regulations – as proposed and as adopted – to ensure that they are legally sound and avoid conflict with other governing documents or the law.
Steps in Developing Rules: The following steps should be followed when developing rules for your community association:
- Determine the need for a rule in the specific area. Ask and answer the question, “why?” Then check to be sure that your community association’s existing rules and governing documents are inadequate to address the issue.
- Consider both the immediate impact of such a rule and its long term implications. How is the rule likely to be received? Will it create a solution to a current problem or create future issues for the community?
- Identify the source(s) of your community’s authority to make a rule in the specific area involved.
- Define the scope of the rule.Specify “who” and “what” will be covered by the rule. The “what” of a rule includes:
a) Requires steps, procedures, acts of prohibitions a person is expected to follow
b) Enforcement procedures
c) Penalties for violations
d) Due process procedure
It is a general rule of law that if something is omitted from a list of items, it was intentionally omitted. An acceptable solution is to use language such as “….to include, but not to be limited to….” It is important to keep the language of a rule simple and specific.
- Apply an enforce-ability test.Check to be sure the proposed rule has the eight characteristics of a valid and enforceable rule.
- Give notice of any proposed rule.Build consensus and support for the rule before it is adopted in order to gain acceptance and compliance. For example, make owners aware that the board is considering a particular rule. Invite written comments. Schedule a hearing on a proposed rule if it is a major matter.
- Act promptly on a proposed rule.Once a proposed rule has been published and input received, the board should act on it at its next regularly scheduled meeting. The board’s options are to either approve or reject the proposed rule – as it is, or as amended. Failure to act will cause the board and the rule to lose credibility.
- Give notice of an adopted rule.Actual notice of an adopted rule is necessary if people are to voluntarily obey it. Send a notice to the owners’ last known address in the community records. Send a notice to the unit or lot address too, in case the occupant is a non-owner. Publish the rule in the community newsletter and website, and/or post it in the common area. If any. Provide copies of the revised rules to all new owners and residents. Whatever notice you give, use a positive “tone of voice.” Avoid sounding demanding or condescending.
- Revise the Rules and Regulations document to include the new rule.
- If required or desired, record the newly-revised set of Rules and Regulations in the land or deed records in your jurisdiction to provide public notice to all future owners of homes in the community.
Missed the first part of this series? Click here to read Part 1 of Rule Development and Enforcement.