Community association rules add tremendous value to any type of association
Adopted community association rules should solve more problems than they create. Good association rules help provide three main goals:
- Administration of the common elements
- Continuation of the peace
- Uniform aesthetics within the community.
A lack of rules or too lax enforcement can cause problems as can overzealous or selective enforcement. A community’s atmosphere is a primary reason people want to live in the community, and preserving a good impression is essential for continuity of value. Almost all associations’ governing documents give the board of directors (or a rules committee) the power to pass rules. However, despite the protections association rules provide, they are a double-edged sword. Although well-crafted rules can address real concerns in an association by promoting a sense of community and preventing owner conflicts, poorly crafted, ambiguous rules create conflicts by inviting debates over a specific rule’s meaning.
Radom & Wetter frequently reviews homeowner’s association rules and regulations and often finds association rules that have common problems. Below are some general recommendations to avoid creating rules that invite problems.
Your governing documents should guide your rules
Although the board of directors has great flexibility to pass rules, the board should consult legal counsel to ensure it has the power to pass a proposed rule before adopting it. Simply put, any proposed rules should not conflict with the association’s governing documents. Failure to construct a rule that is in opposition to the governing documents will inevitably lead to a challenge of the rule and chances are high the board will not prevail in these cases. Radom & Wetter can help your board identify authority in the association’s governing documents, statute, or other applicable rule or regulation.
Adopt clear rules in plain language
Good rules (and laws) avoid language and terminology that is vague or open to interpretation. Every board is subject to change, and it is important that your association’s rules set clear standards that can be applied uniformly not only for the current board, but all future boards too. For example, open-ended words that are subject to interpretations, such as “reasonable” or “regularly” have questionable meanings. Imposing a twenty-dollar late fee seems “reasonable” if the governing document allows for “reasonable” late fees. However, some people think that is too low, while other populations may think it’s exorbitant. In each case, the opposition thinks the fee is actually “unreasonable.” Crafting a late fee rule that clearly defines a twenty-dollar late fee bypasses this type of opposition based on interpretation of vague language.
Use consistent terminology
Inconsistent labels or terminology creates confusion and legal loopholes. Typically, business writers interchange words such as “tenant” or “resident” because they mean the same thing. However, in legal documents, words are legal terms and those terms have specific meanings in a legal sense that implies an EXACT meaning. For example, a tenant in the legal sense implies a person who signed a lease and is paying rent, but although a resident could be a tenant who signed a lease, a resident could be a squatter who climbed in a window last month and took up residence. Consequently, all association rules should avoid using one word to reference two different things, or conversely, two words to refer to one thing. Pick one term and stick with it. If there are different items with different meanings, define each term at the beginning of the rules so that everyone will know the difference. Better yet, consult with an attorney because there are numerous legal terms that have specific meaning in a given context, which your board may not be aware. This is probably the easiest way to avoid future problems and debates over what a rule means.
Don’t give your board discretion
Boards often enact vague rules to give the board greater discretion to determine whether something is a violation. Discretionary rules leave the board subject to accusations of favoritism or bias. Rules leaving decisions to the discretion of the board are so vague – they fail to provide owners with accurate guidance about what behaviors are prohibited. Radom & Wetter can help create appropriate standards to help the board avoid ad-hoc discretion when enforcing the rules.
Attention span is important
Let’s be honest, people do not necessarily read the association declaration or bylaws, or the rules your board has adopted. Rules should be simple and straightforward, in plain English. Avoid jargon and flowery language. If your high school student can’t understand what your rules mean – they are inadequate.
Rules should be readily available
The association’s rules must be circulated to members on an annual basis, and should be available online at all times. New owners who move into the association after rules are passed should be supplied with the latest version.
Contact Radom & Wetter
If you require professional legal advice and representation regarding Community Association (HOA) issues anywhere in New Jersey, make sure your legal rights are protected by seeking the legal advice of an experienced Community Association law firm. Contact us at 908-707-1500 or use our Contact Form.