When writing rules and guidelines for the successful implementation of these, boards should keep the concepts and words simple and understandable to the average person in the community. If residents understand rules, they’re more likely to comply with them.
For example, board members may attempt to lend authority to their writing by using legal words as a way of demonstrating seriousness or fear of noncompliance. Though rules should have a solid legal basis, those who read them must be able to understand them.
The following characteristics of good rules will help board members avoid the traps of complexity and misunderstanding:
- Transparency – Rules should require people to do what they would have done naturally without the rule, after merely thinking about it. Thus, if rules require what reasonable and decent people would do anyway, then rules only must be enforced against the few who aren’t reasonable and decent.
- Sufficiency – Good rules are the minimum necessary to provide for the comfort and safety of the residents, the equitable use and enjoyment of facilities, and the equitable burden of responsibility in a community.
- Positivity. – Residents must understand the need for the rule and comply with it voluntarily. Neither the board nor the manager is in a position to police the community.
- Efficiency. – 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. Such rules may set off several chain reactions, including situations in which:
- Residents ignore the rule and call the board autocratic or dictatorial.
- The board complains that residents are apathetic and ungrateful.
- Residents ignore other rules.
- The newsletter adopts a scolding tone.
- Residents complain about the board to the manager.
- Residents complain that rules aren’t uniformly enforced.
- No side effects. – Good rules resolve, rather than create, problems. For example, the board of the XYZ Association is concerned about teenagers damaging lawn areas when they play ball. To resolve the problem, the board prohibits groups of three or more people over the age of 10 from playing on the lawn. The teens 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 the likely side effects of a rule when drafting it.
- Enforceability – Make sure the board has the authority to enforce a rule before drafting it – then make the rule specific. Vague statements, such as “Loud and boisterous activity should be avoided” leave unanswered the questions “By whom?” “Where?” “When?” “What does avoid mean?” Both mini-bikes and lawn mowers are loud. Should they both be restricted? Does noise from late Saturday night parties create the same problems as noise from a Sunday afternoon wedding reception or barbecue?
Overly specific rules can also create enforcement problems. For example, the ABC Association institutes a rule that states: “Between the hours of 10 pm and 7 am no noise shall be permitted in a unit that measures 30 decibels or greater for more than 10 seconds in the nearest adjacent unit or public area.” Though specific rules may be easy to enforce in court, the board may find it difficult to obtain voluntary compliance. To write an effective rule, the board must balance specificity with simplicity and compliance. No rule will meet each criterion equally.
- Flexible – Good rules allow flexibility and the use of reasonable judgment and mediation in enforcement.
- Communicated to the residents – Associations don’t always publicize rules as effectively or as often as they need to. The board should distribute the current rules to all purchasers when they first move into the community. Since these documents may get filed away with other settlement papers, and since purchasers may lease to others, redistribute copies of the rules periodically, also consider putting up signs in pool and playground areas, listing rules in the newsletter, or putting them on the association’s Web site.
Checklist : For rules and penalties
- Were the rules and penalties reviewed and accepted at a general meeting of members, and at the AGM?
- Did the members sign the resolution accepting these rules and penalties
- Were the rules included in the notices sent to members giving members the opportunity to absorb and understand these prior to the meeting?
- Was the distribution of the notices strictly in terms of the MOI
- Were the accepted rules lodged with CIPC as per the requirement of the Companies Act and the CSOS?
- Once the rules and penalties where lodged, did CIPC and CSOS send evidance of recepit
- If a rule or penalty is contested is there a process in place for offenders to present mitigating factors that are considered?
- Is a “Peer “committee in place
- Are the rules transparent and effective?
- If the rule was not in place, is it how we expect the average person to behave anyway?
- Have we considered all options at our disposal to rectify noncompliance of a rule or penalty , other than or together with issuing a penalty?
- Has the reason and purpose for the rule been stated? Why is this rule necessary?
- Does the rule support the safety and security of its members and the community as a whole
- Does compliance of the rule serve the best interests of the community, and how?
- Are the rules around aesthetics, lifestyle, property value, community harmony, good governance
- Is the rule legally enforceable?
- Is there an existing case law, and has a precedent been set
- Does the rule contradict higher authority
- Rules can not supeceed the Constitution of SA or promulgated legislation
- Does the penalty fit the “crime”
- Does the rule, if aimed at a third party not prejudice their rights “to conduct business”?
- Check contractual arrangements between parties
- How do we use the revenue of the penalties received and can we show costs of the rules process?
- Are we satisfied with the process we use to impose the penalty?
- Does this process include: Letter to the member, Description of the breach, Date, time, circumstances, Reason for imposing the penalty
- The members right to be heard
- Added to levy account
- Do we have a process to deal with members who simply do not pay the penalty?
- How are the Interest and legal fees managed
- What is the hand over process, and does it align with the MOI?
- Do we have a process to deal with members who pay the penalty but continue to breach the rule?
- What is the HOA’s approach to members who continue to breach rules : Ignore as at least the HOA gets the cash, Increase the penalty each time, Get a court order?
- Have we considered the interpretation of the rules and penalties wording and statements? For example : Loud, noisy, unruly, un neighborly, nuisance OR Only earthy colours may be used OR Don’t abusethe security guards
Two examples of rules that may not be legally defensible
- Only accredited estate agents may sell property on the estate and/or we cap the number of accredited agents
- Visitors to the estate will be refused access if they fail to produce their drivers license
Two examples of process issues that should be avoided
- Stopping a vehicle that has been caught speeding and issuing the penalty
- Allow the unpaid penalties to accrue to a point where the ultimate collection becomes impossible