Rules Must Be Enforceable
What makes a rule enforceable? An enforceable rule meets the requirements of the law and governing documents. What makes an enforceable rule a good rule? A good rule meets the needs and requirements of the community. When writing rules, boards should make sure the rules are both enforceable and “good.” In general, courts recognize the following characteristics of enforceable rules. Even better, residents are more likely to accept and voluntarily comply with rules having the following characteristics.
- The rule must be reasonable. A reasonable rule is fair, sensible and not excessively punitive or controlling.
- The rule must be clear and unambiguous.
- The rule must reasonably relate to the operation and purpose of the association, e.g., a rule should protect, preserve, or enhance the properties within the community.
- The rule must be consistent with applicable federal, state and local statutes (such as the Fair Housing Administration Act, the Americans With Disabilities Act, the Civil Rights Act).
- The rule must be consistent with the association’s governing documents; i.e., a rule cannot prohibit what the covenants permit and vice versa.
- The rule must be uniformly enforced. This means there should be no selective enforcement or exceptions.
Read more about using fines to enforce HOA rules
Rules Should Also Be Good
Don’t stop at enforceable – just because a rule will hold up in court doesn’t mean that it serves the needs of the community. The following guidelines for drafting good rules will help board members avoid the traps of complexity and misunderstanding:
- Common Sense. Rules should require people to do what the reasonable majority would have done naturally without the rule.
- Efficient. Good rules accomplish exactly what the board intended them to accomplish. Unfortunately, some associations try to solve a problem by passing rules that are either too harsh or too broad. If dogs running loose is the problem, don’t ban dogs—instead require all dogs to be on leashes at all times.
- Use few rules. Good rules are the minimum necessary to provide for the comfort and safety of the residents, the fair use and enjoyment of facilities, and the equitable burden of responsibility in a community.
- Easy to comply. When residents understand the need for a rule, they’re more likely to comply with it voluntarily. Vague statements, such as “Loud and boisterous activity should be avoided” leave unanswered questions such as “By whom?” “Where?” “When?” “What does avoid mean?”
- Authorized and enforceable. Make sure the board has authority to enforce a rule before drafting it. If you do not have the ability to determine how long a vehicle has been parked, don’t create a rule which bans parking for more then 8 hours.
- Beware of unintended consequences. Good rules resolve, rather than create, problems. For example, the board of the ABC Association is concerned about lawn areas being damaged. In an attempt to resolve the problem, the board prohibits groups of three or more people from playing on the lawn. The residents react by playing on the street or on the lawns of adjacent associations, resulting in complaints from motorists and other association boards. Prevent this type of situation by considering likely consequences of rules.
- Communicate to residents. Rules should be discussed with residents during the drafting process. Owner involvement helps ensure a desire to comply with the created rules. Also, make sure you follow the association’s policies for adopting rules.
Even the best rules won’t please everyone. But the clarity that comes from good rules, both for owners and for the board, can really reduce conflict and encourage compliance. Following these guidelines will help ensure that your association’s rules are legal and effective, and that your community operates a little more smoothly.
Debra Oppenheimer is a partner at the Law Offices of HindmanSanchez in Arvada, Colorado. Her practice emphasizes creating solutions for the covenant and rule enforcement needs of Colorado homeowner associations.