Published on: May 22, 2002
Community association rules and regulations are as varied as the communities they govern, but these documents nonetheless seem to share a single guiding philosophy: “Just say no!”
No unit shall be used for these purposes….
- No drapes shall be hung….
- No pets shall be allowed…
- No vehicles shall park…
No, no, no, no, no. It’s like an endless conversation with a two-year-old.
This “thou-shalt-not” mentality is partly the fault of the lawyers who drafted the original condominium documents, establishing the framework and setting the tone for the rules boards of trustees enact. As anyone who has ever tried to draft a set of rules is aware, it is a lot easier to say, “No, you can’t,” than it is to make the more complex, nuanced judgments required to define what owners may be permitted to do.
The Problem with “No”
But saying no can create problems of its own, as many associations discovered when their blanket “no flags” rules clashed with the desire of condominium owners to join in the patriotic displays that followed the September 11 terrorist attacks. More than anything, that experience illustrated the need for levels of flexibility and sensitivity that most community association rules and regulations lack.Still, the instinct to say no is strong in the homeowner association environment, because boards assume, and many owners agree that strict rules adopted in large numbers and rigidly enforced, are essential to prevent the chaos that would result if residents were not told specifically what they can and cannot do.
There is no question that community associations need to establish clear standards and maintain a measure of control. Studies have shown that one of the major reasons people buy property in condominium communities or PUDs is because they know the community will be maintained at a certain level. They know there won’t be any junk cars on the front lawns or ugly flamingoes in the garden. They expect the community to look the same five years from now as it does today and count on the board to make sure that is the case. The challenge for boards in drafting and enforcing community rules is to reasonably balance the legitimate desire of owners to maintain certain standards, with their equally legitimate desire to express themselves and to individualize their properties.
Changing the Tone
That is not as difficult as it sound. In drafting original documents today, attorneys can do a much better job of conveying the sense that flexibility and sensitivity are desirable features in the rules. The documents might specify, for example, that the board “should provide for reasonably diverse usage of common areas, taking into consideration the need to protect unit values and the reasonable sensitivity of unit owners.” That establishes a very different tone and conveys a different message than a clause that says, “Common area usage shall be limited to….”
Boards drafting new rules or amending existing ones also can do much to lighten the negative tone in the documents, and by extension, in the community itself, by simply replacing all of those “thou shalt nots” with a lot more “thou mays.” It is also helpful to explain the purpose of a rule, or establish a context for it, because owners are less likely to resent and resist rules they understand.An old style regulation would say, “No planting allowed anywhere in the common areas.” The new style alternative might approach the same issue this way: “The association encourages all residents to take an active interest in the appearance of the grounds. Accordingly, owners may plant any of the following shrubs and plants in the following designated areas.”
Similarly, the old “no flags allowed” rule might give way (as it did in many associations after September 11) to a more flexible regulation that acknowledges the desire to display flags as reasonable, but also notes the obvious need to prohibit offensive or derogatory emblems, specifies the kinds of flags that are permitted, describes how large they can be, and specifies how, where, and when they can be displayed. Again, the rules are describing what owners can do, as opposed to identifying something else the community forbids.
Less is More
Community association boards often assume that the more rules they enact the fewer problems they will have, but in fact, multiplying the rules simply multiplies the opportunities for friction and resentment in the community. When it comes to rulemaking, less really is more. Boards should adopt rules to respond to existing problems, but not to anticipate problems that may develop in the future. If it isn’t a problem today, you don’t need a rule to prohibit or regulate it.
There are many areas in which rules are either unnecessarily restrictive, or simply unnecessary. For example:
Outside enclosures. Many associations prohibit outside enclosures that would turn decks or patios into three-season rooms. The obvious concern is a patchwork of architectural styles (some less lovely than others) that would result in the absence of association controls. But instead of simply banning an improvement that many owners would like to make and that could enhance the value and appeal of the property, the board could specify one design, or even two or three that would be acceptable. This would turn a “no” into a “yes” that allows individual owners to personalize their units, but within limits ensuring that no one would build anything truly horrible and disgusting. Interior changes. This is another area where restrictions simply annoy owners without doing much to further legitimate association interests. The concern is not, or should not be, the interior appearance of the unit (which shouldn’t matter to anyone except the people living there) but its structural integrity. So instead of prohibiting all interior changes or requiring board approval of them, the rule could specify that all interior changes are allowed as long as they don’t jeopardize the structure of the unit or the building.
Business usage. A blanket ban on home offices and business usage of units is another standard community association “no you can’t” that is both unnecessary and out-of-step with the times. If other residents aren’t bothered by the activity or don’t even notice it, as is the case with most home-based businesses today, the association rules should not prohibit it. A rule should target the problem. In this case, the problem, or the potential problem, is not the existence of a home business per se but the traffic some enterprises might generate in the community.That is a legitimate concern if an owner plans to open a grocery store or an animal clinic, but hardly an issue for the telecommuting activities that most home-businesses entail today. So instead of establishing a total ban, a rule might simply note that home businesses are permissible as long as they do not produce customer traffic or an unacceptably high volume of package deliveries.
A Lighter Touch This “kinder, gentler” approach to rulemaking can do much to ease tensions between homeowners and their boards and to set a more positive tone in the community overall. But it can be difficult to overcome the fear that a lighter touch will lead to a lessening of standards and a loss of control that will threaten property values. In fact, the opposite is true. Too many rules enforced with too little sensitivity can have a stifling effect, creating an oppressive environment that many owners will find unpleasant and some will find intolerable. Ultimately, it is unhappy owners who pose the greatest threat to future sales and to community property values.
Boards that decide a change in rule-making style makes sense should not initiate the changes on their own. As much as possible, the initiative should come from the owners themselves. As a first step, the board should establish a committee that includes one or two trustees but is dominated by members who are not on the board, to ensure plenty of input from community residents. The committee, in turn, should present its recommendations to the community as a whole. If everyone has a chance to comment, owners are more likely to view the new rules not as a reflection of controls the trustees think are needed, but rather as a statement of the way residents themselves have decided they want to live.