What do Your Rules Say about Your Community?
By: Marlyn Hawkins
A lot has been said about community association rules, but most of these discussions center on the content of the rules as opposed to the overall language used or impression the rules give to owners within the community. Yet, there is another aspect of rules to consider. A good set of rules conveys not only what is permissible in a community, but says something about the character of a community.
In my years as a community association attorney, I have seen hundreds of sets of community association rules, none identical. Some communities have no formal rules, instead relying upon the few “use restrictions” in their declarations relating to pets or satellite dishes. Others have a series of one-off policies drafted in response to particular situations that arise with owners. And finally, some have rules spanning tens of pages, attempting to regulate each owner’s every action within the community. Most of the time, communities are given a set of rules by the developer/declarant and simply live with that template without giving thought to whether they serve and reflect the community’s style or values.
Rules hold the lowermost position in the hierarchy of governing documents, yet they are probably the most recognized by owners and often are perceived to reflect the tone and character of a community. For example, associations without a separate set of rules may appear to have a more laid back approach to community living, while those whose rules are voluminous or contain negative language may be perceived as being exacting and strict.
The perceptions created by the rules are not necessarily accurate, however, if the board is not proactive in creating or revising rules to reflect the association’s current needs and character. For example, a community that creates a resolution and rule every time a conflict arises with an owner may simply be trying to close loopholes in the other governing documents to assist owners in interpretation of the provisions, but on the whole, the actions can be taken as sporadic and reactionary.
In most communities, rules can be created, modified or even removed by the board of directors without a vote of the owners, so the language used is largely up to the board. Thus, the board should consider not only the content of rules, but the form and language used to express them, within the bounds of reasonableness. For example, a pet waste rule can say, “Pet waste on common areas is prohibited” or it can say “Owners are responsible for immediate removal of pet waste on common areas.” Both rules are designed to address the same issue, but the first seems an impossibility, whereas the second seems reasonable. A third possibility that may be considered a kinder version, “Owners are encouraged to remove their pet waste from common areas” really isn’t a rule at all – it’s a mere suggestion, so care should be taken to ensure that rules clearly convey what is acceptable, and what is a violation. Obviously, the tone of a community’s rules is not the primary factor to consider when drafting, but it does deserve thought when revising or drafting rules for other purposes.