Community association boards have the power to adopt rules and regulations, but some rules are better than others. Ill-conceived rules can result in people just ignoring them and, in some cases, even legal challenges.
“Just because we have the power to regulate something doesn’t mean we should regulate it,” said Kara Gould, president of Rowell property management company in Palatine.
If your board is thinking about passing a new rule, ask the following questions:
– Will the rule stand up in court? Legislation and case law say that rules must be reasonable, and they cannot be arbitrary or selectively enforced, said association attorney Steven Bloomberg of Moss & Bloomberg in Bolingbrook.
A majority of board members can pass a rule after proper notification to the owners. If challenged, a judge will make a determination as to whether the rule is reasonable. But judges disagree, he said.
A rule is more likely to be sanctioned by a court if the association’s declaration is amended to include it. The process, however, is more complicated than passing a rule because the unit owners, usually two-thirds of them, must approve the change.
“If you amend your declaration, the judge does not make the determination of reasonableness,” he said. “The court can overturn an amendment to the declaration only if it is unconstitutional, arbitrary in application or a violation of public policy. It’s a much higher standard than `reasonable.'”
If a resident violates a rule, the board must act quickly, he said.
“Otherwise, the courts could construe the acts of the board as being a waiver,” he said. “Or if you fine one person and then a board member or friend has the same violation and you say we’ll let this one go, you may not be able to collect the fine [for the first violation] because you are not enforcing your rules uniformly.”
– Is the rule necessary? Perhaps your association has a rule that many owners violate, such as parking in spaces that are designated for guest use. If that’s the case, evaluate the rule, said Gould.
“Maybe the community wants those spaces for its own parking,” she said. “As a board member, you might disagree, but you have to feel out the membership and find out what it is they want you to regulate. If you don’t, you’re wasting energy and time and can create ill feelings.”
Periodic surveys are a good way to find out which issues are important to owners, she added.
– Is it practical to enforce this rule? “You don’t want to have a rule that is so hard to enforce that it becomes an annoyance to the unit owners or where board members say `I don’t want to be a policeman anymore’ and leave the board,” said Bloomberg.
As an example, he named weight limits on dogs.
“How are you going to enforce that restriction?” he said. “Are you going to have a scale in the lobby and periodically weigh all the dogs? Then you have a beautiful dog who now weighs 28 pounds and has to leave the property. Maybe you should get rid of that rule. Either you have dogs or you don’t have dogs.”
Gould said another cumbersome rule is one that requires owners to keep their clothes dryer vents clean to reduce the possibility of a fire. The surest way to get the job done is for the association to hire a contractor to do all the vents. But it’s tough to pull off.
“The reality is, getting that accomplished is like pulling teeth to get everyone home at about the same time,” she said. “What we do is bombard unit owners with information: Make sure you have your dryer vent cleaned. The same goes for furnaces and fireplaces. You just can’t check all these things.”
Meeting
The Illinois Chapter of the Community Associations Institute is hosting a seminar about fiduciary responsibility from 7 to 9 p.m. Nov. 9 at the Schaumburg Marriott, 50 N. Martingale Rd., Schaumburg. The cost is $35 for members and $45 for non-members. Pay for two board registrations and the rest may attend for free. For information and reservations, call 630-307-0659.
———-
Questions or comments? Contact yourplace@tribune.com.
