Published on: December 13, 2017
by Janet Oulousian Aronson
Consistency may be “the hobgoblin of little minds,” as Ralph Waldo Emerson suggested. But it is also an article of faith for many condominium boards, who fear, and rightly so, that if they don’t enforce rules consistently, they may not be able to enforce them at all.
Exceptions can all too easily swallow a rule. Owners will have little incentive to obey rules they see others ignoring without consequences. Inconsistent or selective enforcement can also expose associations to discrimination charges if boards punish minorities for infractions they regularly overlook in others. But there are some limited circumstances in which exceptions are reasonable, and some situations in which they may be required.
Before discussing how and if boards can make exceptions to rules, it is helpful to explain the scope and limits of a board’s rulemaking authority. That authority isn’t unlimited. In general terms, it stops at the threshold of owners’ units. Boards can govern the use of and behaviors in common areas through their rulemaking, but restrictions on how owners use their units and what they are allowed to do within them can be imposed only by amending the covenants or bylaws, which requires a supermajority vote of the owners. Not understanding this fundamental truth, some boards assume they can do anything they choose. Not so.
For example, boards could adopt a rule barring smoking in common areas, but prohibiting smoking within owners’ units would require a change in the covenants or bylaws. Similarly, if the covenants permit pets, the board can’t adopt a rule that prohibits them or has the effect of doing so.
In one case that ended up in the courts, a board approved a rule that required owners to carry their pets in common areas. This created an obvious problem for the owner of a 90-pound dog, who sued because of it. The court rejected the rule, finding that it improperly restricted the ability to own a pet.
Boards Can Implement but Not Undo
Boards can’t negate or undermine a covenant, but they can adopt rules to administer it. Covenants can provide the underlying authority for adopting rules related to them. A few examples:
- If the condominium documents permit rentals, the board could not establish a minimum rental term, because that would affect how owners use their units. But the board could adopt rules requiring owners to provide copies of their leases, governing the behavior of tenants, and establishing procedures for dealing with complaints about them.
- If the bylaws prohibit commercial vehicles, a board rule could specify that the restriction applied only to vehicles above a specified size, or those with lettering on the exterior.
- If the covenants designate areas for guest parking, the board could specify how long vehicles can remain in this area before guests will be deemed to have over-stayed their welcome.
- With regard to pets, if the documents allow one pet per owner, the board could require owners to register and vaccinate their pets and clean up after them. These rules don’t impede the ownership of pets, they simply establish reasonable obligations for pet owners.
If a restriction on the use of a unit is found in the condominium’s declaration or bylaws, the board usually has little choice but to enforce it as written — unless (and this is a crucial caveat) a modification or accommodation is required under the Federal Housing Act to meet the needs of a resident with physical or emotional disabilities.
This is an area in which exceptions may be required. Even if the covenants prohibit pets, boards may have to waive that restriction as an accommodation for an owner who has a medical or emotional need to own one. Similarly, boards can’t prohibit owners from flying American flags (though they can regulate the size and location), because a federal law specifically establishes the right to display them. Federal law also requires boards to permit the installation of telecommunications equipment, while, again, allowing reasonable rules governing size and location.
Rigidity Isn’t Required
Association rules and covenants can’t conflict with federal, state and local laws and regulations. But outside of those legal restrictions, boards have considerable discretion both in adopting rules and enforcing them. Enforcement should be fair, even-handed, and yes, even consistent. But consistent doesn’t mean inflexible. A rule requiring owners to store their trash cans by no later than 6:00 on garbage pick-up days might be waived, at least temporarily, for an owner who has a broken leg. The owner who leaves a box in the hallway once because he got distracted and forgot to throw it away, probably merits a gentle reminder about the rule preventing storage of personal items in common areas. For the owner who continues to park bikes and leave storage containers outside his doorway despite multiple warnings, a fine and possibly a sizable one might be in order.
When deciding how to exercise discretion, boards should remember that all decisions have consequences. They must weigh the consequences of enforcing a rule against the consequences – for individual owners and the community as a whole – of not enforcing it.
How many owners are helped or harmed by one choice or the other? Which option is best or least detrimental for the community? This weighing of interests will yield different results in different situations and in different communities.
No single approach to rules enforcement will be ‘right’ for all associations. Rules and enforcement policies should reflect the characteristics of the community and the and preferences of its residents. But if you’re looking for a general guideline, I’d suggest this: You want to have in place enough rules to make the community comfortable and safe for residents, but not so many that it feels like a police state. And you want to establish enforcement policies that combine the fairness and consistency needed to encourage compliance with the rules with the flexibility required to handle special circumstances and respond to the special needs of individual owners. To that general advice, I’ll add a few specific do’s and don’ts for board members.
Rulemaking Do’s and Don’ts
- Make rules enforcement objective and impersonal. One board member was so passionate about the enforcement of pool rules that she jumped into the water and tried to drown an owner who was violating them. That’s an example of taking enforcement much too personally.
- If you see someone violating a rule, take notes, take pictures, but don’t take matters into your own hands. Unless the violation involves the health or safety of residents, don’t confront the violator. A resident building an open fire next to a storage shed arguably would require immediate intervention; an owner parking in a guest spot, not so much. Better to send a letter signed by the manager or the board describing the violation and the penalty, if any, resulting from it. A letter is less personal, less confrontational, and less likely to trigger a knee-jerk reaction from the owner.
- Create an appeal process that allows owners to contest a violation or explain extenuating circumstances that might excuse it.
- Don’t adopt policies that unreasonably and unnecessarily tie the board’s hands. Instead of establishing specific fines for specific violations, the board might simply require that fines be “reasonable.” If the rules require a warning for the first violation of any rule, the board couldn’t distinguish between minor violations that might warrant a warning, and dangerous behaviors – firing a gun in the common area, for example – that shouldn’t be tolerated at all.
- Make sure your rules are stated clearly, identifying activities or behaviors that are permitted as well as those that are banned.
- The association’s rules should target community-wide concerns; not isolated incidents or the pet peeves of owners or board members. You don’t need a rule for everything. It is better to err on the side of having too few rules than having too many.
- When drafting rules and setting enforcement policies, remember that the primary goal is to encourage compliance, not to punish owners nor to generate additional revenue for the association.
- Don’t adopt rules you can’t enforce and don’t accept responsibility for enforcing rules or covenants that aren’t enforceable.
- Review the association’s rules periodically ─ at least every two or three years ─ to make sure they are still relevant to the community, still reflect the priorities and concerns of its residents, and still comply with applicable laws and regulations. Your review should consider the enforcement history. A rule that is being violated repeatedly or isn’t being enforced, should probably be repealed or modified.