Being reasonable1st Sep 2019
Most community associations seek to enforce their rules while still maintaining a harmonious community that the residents view as a desirable place to live. At times, though, these goals seem to be contradictory, and strictly enforcing the rules can result in controversy.
Recent events, such as attempts to enforce association restrictions against flying flags, have generated significant media attention and, as a result, attention from state and local legislatures. These goals need not always be treated as conflicting. The use of common sense and flexibility allows the association to enforce the essential purpose of a rule, while not dragging the association into controversy that divides the community.
Many governing board members believe that the failure to enforce rules in every instance will result in the loss of their ability to enforce the same rules in the future. We also regularly hear boards espouse the theory that allowing a deviation from a rule in one instance creates a precedent that will then obligate the board to allow similar deviations from the same rule in every instance. For the most part, these are canards that are not well grounded in the law, and force associations into positions of inflexibility, resulting in the belief that associations are cold and lacking in humanity, and require a legislative reining in. This article examines the legal underpinnings for these beliefs, and offers practical solutions to avoid unnecessary disharmony.
To be sure, exercising flexibility and discretion requires more effort. An issue must be examined in greater detail, various alternatives must be considered, and a decision reached that supports the intended purpose of a rule while avoiding needlessly strict interpretations. Changes in the values of the community, the culture at large and current events must all be factored in. Many board members may prefer the black-and-white approach because it simplifies the process, and allows board members to devote more time to what are viewed as the essential functions of a board – reviewing contract specifications, budgeting and so forth. However, it ignores the fact that the community association field has learned that, perhaps, the most important function of a board – and a factor that builds value in a community just as much as the beauty of the landscaping – is the sense of harmony that exists in the community.
In this context the word ‘reasonable’ is difficult to define. All parties in a dispute believe that they are reasonable and the other party is not. Often, the basis for a dispute is the failure of each party to recognise the interests of the other party, and, before those interests are truly understood, emotion takes over through escalating verbiage that leads the parties to believe that there is no purpose in exploring alternatives. One definition of ‘reasonable’ can be discerned from the opinions penned by our courts. In determining whether boards have acted in a reasonable fashion, courts have repeatedly looked at certain attributes of the board’s decision-making process. Did the board deliberate? In other words, did it take time in reaching a decision, or was the decision generated in a purely reactive manner? If the board did deliberate, did it take into consideration alternatives – not only the alternatives offered by the owner against whom a rule is being enforced, but other alternatives that had not yet been explored? And did the board exercise restraint? In other words, did it adopt or enforce a rule in a manner that went beyond responding to a problem that the rule was intended to address? Even where a particular judge may find that he or she would have determined a matter differently, if the board’s decision was reached through a deliberative process in which various alternatives were explored, and the least confrontational approach that would cure the ill that the rule sought to address was chosen, courts will routinely uphold boards.
Increasingly important has been the concept of what legislators view as reasonable. More frequently, we find that legislators or important legislative staff members live in community associations. Not infrequently, they have experienced some aspect of life in community associations that demonstrated a lack of flexibility or common sense that led to a conclusion that legislation was necessary to deal with what is increasingly being viewed as quasi-governmental entities. Many legislators have a municipal background and are familiar with the requirements and restrictions that apply to municipal governments. They do not understand why the same restrictions and requirements should be applied to community associations. While community associations are not a precise analogue to municipal governments, there are, of course, aspects that bear a striking resemblance. Hence, the opinion of legislators with respect to what constitutes reasonable behaviour is particularly important if community associations desire to avoid overly burdensome legislation controlling the powers of boards of trustees.
Case studies suggest that boards have the flexibility to review the significance of a particular deviation from a rule, and to allow isolated deviations where they do not oppose the intended purpose of the rule. Even where the purpose of the rule may be violated, these cases clearly indicate that a single or even several violations will not constitute enough precedent to prevent future enforcement of the rule should a board determine that prior exceptions were not prudent.
We turn now to the practical aspects of the adoption and enforcement of rules, and suggest approaches that boards should consider.
Adoption and amendment of rules
Boards would be well served to seek input from the community before adopting significant rules. Although individual owners may complain about circumstances that convince a board that new rules are required, the failure to seek buy-in from a significant portion of the community will doom a new rule from its inception. Furthermore, failure to involve the community often results in not considering alternatives that may have been preferable to ones proposed by the board.
In most association documents, the board is empowered to adopt and amend the rules and regulations of the community, except for those restrictions appearing in the governing document, which require owner approval. In exercising this rule-making authority, boards should be careful to take the pulse of the residents of the community before acting. Experience has taught that many boards have either adopted rules at serious variance with the prevailing thought of the residents that they serve, or were about to do so when they asked for resident input. Accordingly, resident input should be solicited on controversial issues such as recreational equipment on lots or common areas, trash removal receptacles and regulations, pet restrictions, holiday decorations, parking, etc. In addition, boards should be sensitive to evolving standards and technology, and opinions about these types of issues. Put another way, what might have been offensive to residents in the community 10 years ago may be acceptable today. Although not all condominium associations would find the presence of rainwater tanks or solar panels on common elements acceptable, a higher percentage of owners would find them inoffensive than would have even five years ago. As a result, a board’s view on water or energy harvesting technology must take into consideration the demand that may legitimately alter a board’s concern from absolute ban on the common elements to considering possible locations that are not intrusive, or that focus more on the method of installation so that damage is not done to the physical assets of the association.
The adoption and amendment of rules and their enforcement, once adopted, are heavily dependent upon consistent education of residents. This is particularly important during the rule’s adoption process. History tells us that, even if a resident objects to the substance of a rule, if they feel they were given an opportunity for input in the adoption process, they are more apt to adhere to the rule once in place. All of the various rules and restrictions of a community should also be included in the welcome pack given to new members of associations. Some associations, when adopting amendments to their governing documents, have even included a requirement that new buyers must participate in an orientation meeting advising them of the community’s rules and practices before they may obtain amenities like remotes to access gates, or gain access to recreational facilities like swimming pools. In many instances, rule violations are the product of nothing more than ignorance on the part of the offender.
Enforcement of rules
All rules were not created equal and, as suggested by the cases reviewed above, need not be enforced equally. In other words, a board may well choose to more vigorously enforce a rule requiring a dog owner to pick up after their pet, and more or less ignore a rule prohibiting anything to be placed on the front steps of a unit, which, read literally, would prohibit such items as flower pots, benches, etc. Many if not most association restrictions start with what one might call the ‘no nothing, nowhere’ set of restrictions, which, if read literally, would prohibit an owner from personalising the exterior of their home in any manner. Most boards adopt a more relaxed view of these documents, while seeking to rigidly enforce other rules with more dramatic negative impact on the community.
There is no right or wrong in deciding which rules should be applied more vigorously than others. Indeed, the personality of each community, and the board that governs it, will often have a dramatic impact on this prioritisation process. What is important is that the board and whoever will be involved in rule enforcement (typically its manager, committees, etc.) sit down early on and review every rule and prioritise what matters and what does not.
Avoiding antagonistic struggles over the enforcement of rules is often dependent upon the manner in which the enforcement process begins. There is no requirement that the first step in the enforcement process be a cold letter from the management company threatening fines and other draconian measures in the event of continued non-compliance. A friendly telephone call, or a softer letter that seeks to educate a violating owner rather than threatening them, may prevent a small issue from escalating further.
Some issues are more inherently controversial and emotional than others, and require a more sensitive approach to not only avoid controversy within the community, but also media attention that can be polarising. Although ostensibly not on the same plane in terms of importance, these issues share the common denominator of inflaming passions or placing a significant portion of the community in one of two or more camps. Accordingly, when communities seek to enforce rules and restrictions in these areas, special care should be taken upfront to deal with them differently than less volatile matters. That may well mean going slowly when approaching these issues, and showing a flexibility that is not always the hallmark of community association leadership. Board and management should also seek professional advice when confronting these difficult issues. It is far better to solicit the opinion of the community’s attorney before an unflattering photograph of a board member is on the front page of the newspaper. Indeed, this may avoid any media attention at all.
Associations should consider alternative enforcement mechanisms. Many enforcement issues lend themselves to utilising outside authorities as the enforcers, rather than pitting the association against one of its residents. Examples include noise complaints, dog walking issues, operating businesses within units and overcrowding concerns, all of which are typically governed by local ordinances enforced by local officials. When given that option, let the outside authority do the heavy lifting. Sometimes, municipal officials will attempt to avoid their responsibilities by claiming that disputes within an association are occurring on ‘private property,’ and therefore beyond their jurisdiction. This is often incorrect, and sometimes a short conversation with the mayor or an appropriate letter from the association’s attorney is all that is necessary to bring about compliance by the municipal authorities.
On occasion, the issue before the board concerns one owner haranguing the board for failing to enforce a rule while another takes the contrary position. If the board sincerely believes the strict enforcement of the rule will not further its intended purpose, it should explain the rationale for its position to the complaining residents, and remind them that if they would like to enforce the rule themselves, they are free to do so. While this may not mollify the complaining owners, the approach is clearly preferable to involving the board in a divisive issue that will linger far too long.
Managers are often confronted with the question of what their role in the rule’s enforcement process should be. Certainly, it is to enforce the regulations of the association, subject to the prioritising process noted above. However, it is also to provide advice to the board and association when the board may be going down a road with potential adverse consequences. One of the sad consequences of managers being criticised for their performance is that they become less and less willing to offer advice in areas like this, for fear that they may be criticised if things do not go well. However, an experienced manager will often have handled matters such as this before, and their advice should certainly be solicited and considered.
In conclusion, disputes involving even the most difficult issues need not inevitably result in bitter struggles and bad press, and associations can minimise that potential if they act slowly, carefully and with reason in these sensitive areas.