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  • Michael Shifrin

Don't Roll the Dice With Unclear Rules for your Community Association!

Condominium and community associations are primarily governed by three separate documents: 1) declaration; 2) bylaws; and 3) rules and regulations. Federal and state statutes also apply; however, the declaration and bylaws are the most applicable on a daily basis as they are designed specifically for the association they govern, or at least they should be. The developer typically creates the declaration and bylaws of an association and records them before turnover. Truth be told, most association members never read their declaration and bylaws. They receive them with numerous other documents at their closing and place them in a drawer alongside other “closing documents” to collect dust. As a result, the rules and regulations document becomes their primary source of control. This is why most association boards create rules and regulations.

The purpose of association rules and regulations is to supplement the existing declaration and bylaws, not replace them. Let me restate that: the purpose of rules and regulations is to supplement, not replace, an association’s declaration and bylaws. Specifically, rules and regulations fill in the gaps and address areas of concern not already addressed in the declaration and bylaws. For example, most associations have a paragraph in their declaration that addresses noxious and offensive activity. It may say something like: “no noxious or offensive activity shall be carried on in any unit or in the common elements, nor shall anything be done therein, either willfully or negligently, which may be or become an annoyance or nuisance to the other unit owners or occupants.” A board may wish to add to this restriction by adopting a rule that is more elaborate. For example, many boards adopt rules that specifically prohibit the creation of excessive noise within the units from 10 pm – 7 am. They also provide examples of behavior they consider to be “noxious and offensive.” Establishing a timeframe within which excessive noise is prohibited and providing examples of noxious behavior helps drive home this concept for unit owners.

One of the major challenges of designing effective rules is the need for clarity. They need to strike a balance between specificity and ambiguity: of being specific enough to enforce but general enough to capture many potential violations. This is best explained by example. An association may have a rule that “prohibits the use of open flames on a balcony.” On its face it seems like an effective rule. However, some owners may interpret this rule to allow the use of gas grills on balconies because the flame is concealed inside the grill itself. The phrase “open flame” is subject to interpretation. A more effective rule would read “grilling of any kind is prohibited on balconies.” This distinction seems subtle, but it makes a big difference when the board interprets a rule and applies it to circumstances within the association. Boards that take time to think about specific language that convey their intent will have a much easier time with rule enforcement.

No matter how clear and concise an association’s rules are, the board must also have an established protocol for enforcement. Without enforcement, rules are meaningless. Enforcing association rules and regulations should be carried out by the board, often in conjunction and with help from management, and should work like a well-oiled machine. Many associations include their ‘enforcement procedure’ in the rules document itself. They do this to help educate association members about the process and to provide fairness and due diligence to all.

A strong rule enforcement procedure typically contains a few basic components. It usually outlines the ways in which owners may file complaints with the board about alleged violations. Such options typically include email, handwritten letters to management, or completion of specific incident complaint forms. Violation complaints should always be as specific as possible and include the date, time, and location of the incident. They should also include the names of witnesses and any evidence that may support the complaint such as video or tape recordings, pictures, written statements, or police reports.

Upon receiving violation complaints, boards should review them and discuss whether they believe a violation exists. The fact that a complaint is lodged does not in and of itself mean a violation notice must be sent to the alleged offender. This step is sometimes overlooked by boards and management. There may be occasions when complaints are filed and no action is taken because the board does not believe a violation occurred.

If a violation is suspected to have occurred, a warning notice to the alleged offender is usually the first step. The notice should outline the facts and circumstances, cite the specific rule that was violated, and provide the owner with an opportunity to cure the violation – if it’s ongoing – or to refrain from engaging in such behavior again. The warning notice should also outline the potential fine if the violation does not cease. If the violation continues or there is a repeat occurrence, a second violation notice should be sent coupled with the threat of a fine. As a matter of law, the owner must be given an opportunity to request a hearing before a fine is levied. If requested in a timely manner, a hearing is held with the board at which time the owner is afforded the opportunity to present his or her defense. Following the hearing and at the next open board meeting the board votes upon levying the fine. If no hearing is requested, the board votes at its next open board meeting upon levying the fine.

If the violation continues or there is a repeat occurrence, a third violation notice coupled with the threat of an increased fine should be mailed. The opportunity for a hearing should again be provided before the board votes upon levying the fine. Finally, if the violation continues or there is a repeat occurrence following the third violation notice, the matter should be turned over to legal counsel for legal action.

Each association’s enforcement procedure has subtle variation and may be customized to fit the association’s individual needs. However, these are the major components found in most association rule enforcement procedures. One of the keys to maintaining a first-class community is uniform and consistent rule enforcement. Violations left unchecked cause rapid deterioration of association property, association culture, and morale. Knowing the important role rules play in any community, now is a great time to have yours reviewed and, if necessary, updated.

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