Published on: March 4, 2014
Condominium law is different from condominium rules. Rules are made to be broken – or so it seems in some condominium communities, where owners regularly ignore rules and boards enforce them inconsistently, if at all. At the other extreme you will find communities in which rules overflow from War and Peace-sized volumes, where no infraction, however small or insignificant, goes unnoticed or un-fined.
The best strategy lies somewhere in between, with enough rules to make the community comfortable and safe for its residents without making it feel like a police state, and enforcement policies that combine fairness and consistency with the flexibility needed to handle special circumstances and respond to the special needs of individual owners.
Many board members assume that they must enforce rules with rigid consistency, treating all owners in precisely the same way. But consistent doesn’t have to mean inflexible; boards have the discretion to enforce rules strictly in some situations, less strictly or not at all in others depending on the individual circumstances involved. The challenge for boards is knowing when and how to exercise the discretion they have, and doing so in an even handed, well reasoned manner.
To Enforce or Not
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. But if the Fair Housing Act isn’t involved and the requirement isn’t specified in the condominium’s governing documents, the board may have some discretion in enforcing it or not.
Boards should make these choices carefully. All decisions have consequences. Boards must weigh the consequences of enforcing a rule against the consequences – for 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.
Consider this example: An association rule says owners cannot put their trash on the curb before 6 p.m. on the day before the scheduled pick-up; and they must retrieve their trash containers no later than 6 p.m. on pick-up day. Because John works an overnight shift, he put his trash out when he leaves at 4 in the afternoon and doesn’t retrieve the can until 5 a.m. the day after pick-up, missing both deadlines.
This incenses one of his neighbors, who complains incessantly about John’s behavior and demands that the board enforce the rule. Using the balancing-of-interests analysis (who’s helped and who’s harmed), the board might well reason that because only one neighbor has complained about John’s trash schedule, and because flexibility would help him without really harming anyone else, strict enforcement of the rule may not be the best approach.
Consider the Consequences
But whenever boards fail to enforce a rule for any reason, they must consider the possibility that others will feel free to violate it as well. So one possible result of bending the rule for John is that instead of one trash can sitting on the curb for a day or more, there might be 3 or 4 or 30 of them. The broader the impact a rule violation has on the community, the clearer the board’s obligation to deal with it.
If this is a concern, the board might opt for enforcement over flexibility and insist that John comply with the trash rule, leaving it to him to figure out how, or, better still, helping him find a solution, or amend or repeal the rule altogether. Perhaps one of his neighbors (presumably not the one complaining about him) would be willing to help; or maybe a teen living in the community would like to earn some extra money by helping John and other residents for whom the trash schedule creates difficulties. The board’s primary goal, after all, is to encourage compliance with the rules, not to punish owners for violating them nor to generate additional revenue for the association through the imposition of fines.
There are some situations, and probably many of them, when the scales will tip clearly in favor of enforcement. This is often true when the board is dealing with the violation of a restriction (in the covenants or bylaws) or other material issue. For example, boards should be very careful about decisions not to enforce covenants prohibiting smoking. Exposure to second-hand smoke is a known health hazard. If owners complain that a resident is violating the restriction and the board fails to act, the association could face liability for medical claims should those owners be sickened by the smoke.
Because of the potential liability for not acting, boards respond in some way, even if the response involves efforts to mediate between the owners or efforts to alleviate the effects of the smoke in the complaining owner’s unit by installing a filter or other air purifying device.
Sometimes the question for a board is not whether it should enforce a rule or restriction but whether it is able to do so. A smoking ban can create precisely that dilemma. Mrs. Smith says she smells cigarette smoke in her unit and she is certain it is coming from the neighbors on her right, who flatly deny the charge. Board members can smell smoke in Mrs. Smith’s unit, but the source isn’t clear. In this situation it may be appropriate to retain a qualified engineer or other professional to ascertain the source of the smoke.
It is helpful to think through the above scenarios if your community is planning on adopting a no smoking policy. One way to limit the board’s liability for inaction is to include language in smoking ban amendments specifying that the board is not guaranteeing a smoke-free community and noting that while the board has the authority to enforce the rule, it is not required to do so in all cases. We also often include language in the amendments we draft specifying that owners have the right to enforce the restriction by private action if the board chooses not to enforce it. This language doesn’t completely eliminate the association’s liability risks and it won’t prevent non-smoking residents from suing if the board fails to act. But it will strengthen the board’s defense by undercutting the argument that only the board has the authority to enforce the smoking ban.
A no-pet restriction doesn’t pose the same liability risks for non-enforcement as non-smoking restrictions, but it also begs for enforcement (unless a Fair Housing Act accommodation is required). The balancing test makes this clear. If the board ignores Mrs. Smith’s kitten, because it is tiny, stays inside and doesn’t make any noise, it won’t be long before Mrs. Jones, across the hall, decides it’s ok for her to adopt a Chihuahua. Then Mr. Wright will adopt a lion cub and before you know it, the pet population in the community will explode, along with the tempers of owners who moved into the community precisely because pets were prohibited. In this situation, the board should probably let owners to decide via a vote if they want to retain the existing rule, modify it or eliminate it by amending the community’s bylaws.
Neighbor vs. Neighbor
Some of the most difficult ‘enforce-or-not’ decisions involve disputes between neighbors. A classic example: One owner complains about the excessive and intolerable noise created by another one, saying this constitutes a “nuisance” that the board is required to prohibit.
When you have two owners complaining about each other, it may be difficult or impossible to determine which of the owners is creating the problem. It may be both of them. This is especially true when other residents can’t corroborate the noise or other issue about which one of the neighbors is complaining.
In inter-owner disputes of this kind, the best course of action for the board may be to mediate the dispute (if possible) rather than enforcing the rule. If mediation is not possible, the board may simply have to refuse to become involved in the dispute. In similar circumstances, we have sent both owners a letter stating that the board could not determine who was at fault and so would be forwarding all further complaints directly to the police department.
While the board’s involvement in inter-owner disputes is ill-advised in most cases, it is essential in some. The decision should be based on the seriousness of the situation. Complaints that a neighbor is stomping intentionally on the floor should be treated differently than claims that a neighbor is threatening violence or using racial slurs. The liability for failing to address foot-stomping is negligible; the potential liability for failing to address threats of violence or discrimination is immense.
Landlord-tenant relationships, like neighbor-vs. –neighbor disputes, are another area in which boards should avoid involvement. Concerned that “bad” tenants might move into the community, some boards want to assert their right to approve tenants who will be occupying units rented by their owners. While boards may, indeed, have the authority to enforce such a restriction if contained in the constituent documents, we strongly advise against it.
Rejecting a tenant for any reason could expose the board and the association to liability for discrimination (if the tenant is a member of a protected class) or for interfering improperly with a business relationship. If the board approves a tenant who subsequently commits a crime in the community, there is potential liability there, too. Nothing good comes from inserting the board in the tenant section process – only a lot of additional liability the association doesn’t want.
In condominium communities, as in physics, every action has a reaction. Enforcing a rule will upset the owner violating it; not enforcing it will upset others. So while the obligation to be fair and reasonable doesn’t require rigid consistency, it does require caution and good judgment. Even in situations like the trash schedule described earlier, where the argument for flexibility is strong, the board must be prepared to explain the rationale for ignoring a violation and to demonstrate that the decision wasn’t arbitrary, capricious or discriminatory.
Warnings or Fines?
Caution is required in the imposition of fines as well as in the enforcement of rules. A highway patrolman who stops a speeding car can ticket the driver for gong 20 miles over the limit, report the speed as something less than that (to reduce the fine) or simply issue a warning to pay more attention to speed limits in the future.
Boards have similar discretion in some instances; they don’t have to impose the maximum penalty on every owner for every violation. The owner who leaves a box in the hallway once because he got distracted and forgot to take it to the trash, 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.
Boards often exercise discretion in their collections policies by offering extended payment plans or other measures to give owners who become delinquent in their payments a chance to catch up. This is a reasonable and appropriate use of the board’s authority to respond flexibly to some situations. But any special treatment the board offers to one delinquent owner should be available on the same terms to all owners in similar circumstances, and it should be structured in a way that preserves the association’s lien priority, ensuring the association’s ability to collect back payments if the owner remains in default.
For collections and for rules generally, we recommend that boards establish written enforcement policies to provide transparency and dispel suspicions of favoritism or discrimination. We also recommend that boards create a graduated schedule of fines, from lower to higher, based on the frequency and severity of the infractions. A first offense would typically bring a lower fine, but if an owner has stored dynamite under his bed, the board wouldn’t want to wait for the second or third violation notice before imposing the stiffest penalty possible.
Reviewing the Rules
Unlike diamonds, rules aren’t intended to be forever. Community associations change over time and their rules should evolve accordingly. Restrictions and requirements deemed crucial to one set of owners may seem unnecessary or objectionable to new owners who replace them. With those changes in mind, boards should review their rules and have the association’s attorney review them periodically – at least every two or three years – to make sure they are still relevant to the community and still reflect the priorities and concerns of its residents. The review should ask these questions of every rule:
- Is it necessary? Does it target a current problem or behavior that affects the health, safety or comfort of residents and the quality of life in the community? A good rule of thumb for boards to use: If you can’t see, smell or hear it, you probably don’t need a rule that prohibits or requires it.
- Is the rule legal? This is a two-part question:
- Do the condominium documents give the board rule-making authority in this area?
- Is the rule consistent with state, local and federal laws and regulations? Rules that were legal when adopted could be rendered unenforceable by the passage of new laws or by court decisions ─ another reason the association’s attorney should review the rules periodically.
- Is the rule calibrated properly? Rules should be strict enough to address the targeted problem but no more intrusive or restrictive than necessary to achieve the desired result.
- Does the board enforce the rule consistently or ignore it? Having a rule that isn’t enforced is almost always worse than not having the rule at all.
- Do many owners violate the rule repeatedly? If so, either they don’t understand it (in which case, the board should do more to explain it) or they don’t like it, in which case, perhaps the rule should be amended or eliminated.
By Mark Einhorn