At Radom & Wetter, we’re often asked to conduct an evaluation of, eliminate or update community association rules and regulations and available enforcement tools. Rules must complement rather than contradict provisions in the declaration, master deed or bylaws. Also, rules should solve more problems than they create. During review, we often find current rules that need to be updated or eliminated altogether. For example, a board may have enacted a fining resolution that says that no fine may be imposed until after a third notice of violation when in fact, the board might be imposing a fine upon the instance of a second infraction. That rule should be updated by the board or the board should conform to the rule in effect.
Rules vs. Covenants
Generally, the declaration or master deed of an association contains covenants (i.e. agreements or promises that are binding) that cannot be changed unless properly amended according to the procedures set forth in the declaration or master deed. Likewise, the bylaws of the association contain covenants that may only be amended by following the procedures set forth for amendment in the document or in State law. The rules and regulations, on the other hand, are usually enacted by the board of trustees of the association and thus, can be changed by the board of trustees as necessary. As stated above, the rules must complement and may not contradict or nullify the provisions of the declaration or master deed and the bylaws (commonly referred to as “the governing documents.”)
Rules and regulations adopted by the board may need to be updated to be more relevant to members’ lifestyles these days and, more importantly, to be in compliance with today’s laws. Not updating documents can cause:
- Confusion as to what is allowed and what is not allowed which can lead to the problem of claims of selective enforcement.
- Directors to be misled regarding their duties and responsibilities by relying on outdated provisions.
- Members to be misled into believing the rules and regulations accurately describe members’ rights and legal procedures, especially with respect to notices of meetings, running for the board, and fining procedures.
Residential Use: Most associations documents seek to prohibit commercial use of the property. In today’s telecommute work environment, however, many community association members are already violating this provision if documents have a broad prohibition against “commercial use.” Technically, a telecommuter is earning a paycheck conducting company business from home. This definition can also be extended to people who might be working online, providing counseling, tutoring, or advising clients – and is a restriction crafted long before the advent of cell phones, tablets and personal computers. The prohibition on commercial use was designed to maintain the residential character of the community and to avoid creating a nuisance for neighboring owners. Examples might include both legal activities such as counseling or babysitting, and illegal activities such as an unlicensed home hair stylist. They both might create undo traffic, but the latter might include overbearing smells from chemical hair treatment. Today’s use of digital devices rarely impacts the residential character of the community nor does it create an actionable nuisance. Associations should revise older commercial use restrictions to define the types of commercial activity which are prohibited and which are not.
Trucks: Once upon a time, trucks were forbidden in community associations as they implied commercial use by lawn companies and other contractors. Trucks were seen as detracting from the overall aesthetics of the community. Fast forward to today – many trucks are expensive vehicles driven by a wide cross section of the population. Furthermore, trucks may fall into a unique “collectible classic” category. If community association documents have a blanket restriction against “trucks” or “commercial vehicles” without proper specificity, it may be time to rethink why these vehicles are being prohibited. If parking spaces cannot accommodate larger vehicles, it may offer a legitimate reason for the restriction. Additionally, regular traffic by vehicles over a certain weight are known to cause additional damage to roads and drainage pipes (for which a commercial construction company would present a bond to cover any potential damages). The association might consider size limitations or designate appropriate parking areas for larger vehicles. If the restriction is borne out of aesthetic concerns alone, it may be a restriction that is unnecessarily narrowing the pool of eligible purchasers.
Pets: Almost nothing excites the passions in a community like pet issues. In order for pet rules to solve more problems than they create, any rule drafted should be closely tailored to remedy a specific situation. Rules should not create hardships that make compliance unlikely or impossible or create enforcement nightmares. For example, rules that purport to exclude specific dog breeds can lead to unhelpful controversy when mixed breeds are involved. Is a rule that could lead to the requirement of DNA testing for breed history really practical or desirable? A better rule should be aimed at prohibiting dangerous dogs which would be defined by actions rather than pedigree. Revising rules to prohibit only those pets or animals your board would be prepared to pursue legal action to remove might help avoid assertions of selective enforcement.
Families: As attorneys, we try to help community associations avoid potential liability. Families with children are a protected class under both Federal and New Jersey law. Rules singling out families with children by making their experience in the community more restrictive than families without children may be seen by the courts as driving a discriminatory agenda. Your board has to strike the right balance between protecting residents and common areas and not creating and enforcing rules having a disproportionately negative impact on one set of residents. For example, rules permitting pool use only during school hours might be viewed as a transparent attempt to keep children out of the pool altogether. Rules using words like “toys,” “running” and “playing” expose a preconceived notion of which segment of the association’s population engages in those activities. Age is not the best way to draft rules of conduct, and the capacity for assessing safety and judgement is not exclusive to any age group.
The state of New Jersey does not require communities to review their rules periodically. Even without a legal requirement, associations should be reviewing their existing rules regularly. Governing documents should be amended to eliminate or correct:
- Obsolete provisions.
- Provisions no longer observed or enforced.
- Provisions that conflict with current laws.
- Provisions required by the Department of Community Affairs in a start-up project that are no longer needed.
- Developer privileges no longer being used, such as two-class voting or exemption from use restrictions.
- Poorly drafted documents by clarifying ambiguous provisions.
- Documents that no longer fit the living experience of owner/members.
- Restrictions that no longer accommodate changes in technology (satellite dishes, home office use, etc.).
- Documents that are not user friendly like those with numerous amendments making them hard to follow.
- Documents with mistakes and errors.
Is it better to record amendments to existing governing documents or revise the entire document?
Governing Documents will need to be quickly reviewed to confirm that they are reasonably up-to-date and in fairly good shape, in which case only one or two sections may need to be amended. In such cases, it is preferable to attach some simple amendments rather than to create an entirely new document. However, if documents are in need of several amendments, or are extremely outdated (over 20 years old), it may better to start with a brand new, up-to-date set of documents. It may be more efficient, and therefore less expensive, for an experienced attorney to provide a modern format for the legal documents.