Publications
Using Rules to Build a Healthy Community
Published October 9, 2004 as
Association rules and regulations help to maintain order
Notwithstanding a recent People Magazine article (October 4, 2004) covering homeowner association problems, rules and regulations can promote a beneficial and energetic living environment within your community. How, you ask? It is no different than playing a game and actually having fun. If you know what the rules are before you begin, there are no surprises. Everybody is playing on a level playing field. But, what if you were playing golf and someone ran up to you, tackled you and spiked your golf ball? That would be an unexpected turn of events and that is similar to the rule process in a lot of associations.
Rules and regulations are just what they purport to be; they are not the dictum of the emperor. Every community association has a culture that develops partly through the rule-making process. If the rules are just handed down from on-high, with no owner feedback, it is the development of a “we versus them” attitude which will create a class of restless owners and board relations become very unpleasant.
Rules can be a positive influence or a detriment to your community. There are good rules and bad rules. Which ones does your association have? Bad rules are so overly restrictive that they breed resentment and the board is sometimes reluctant to enforce them. Bad rules can also be so loosely written that they are incomprehensible and unenforceable. Good rules deal with most commonplace situations, are detailed and clear and most important, reasonable.
Sometimes the board members have to ask, “Who drafted these rules anyway?” Were the rules there when you arrived? Are they something the developer slapped together, the manager took verbatim from another property or drafted by a lawyer-wannabe on the board?
Adopting rules and regulations.
Whether it is a new association board that just turned over from the developer or a mature association with several new directors, one of the first things the new board needs to address is either creating or updating its rules. Section 18.4(h) of the Illinois Condominium Property Act (765 ILCS 605/18/4(h)) and most declarations call for the adoption of rules and regulations by the board of directors.
Keeping the rules current is an ongoing process. Every meeting where the board votes and makes decisions is an indirect way of adopting or amending the rules. That is why it is important for the board to go through the minutes at the end of each year to determine how many motions and resolutions were voted upon which resulted in new or changed policies that should be incorporated in an owner handbook. One of the biggest problems in the area of rule enforcement is the resident objecting because they did not know about the policy. New rules, changes and votes of the board enacting policy must be made public so the “I didn’t know” factor is easily removed from the equation. Updates can be easily publicized in a newsletter.
Community input
It is important to get the community involved in the decision-making process. Solicit non-board member volunteers to serve on the rules committee. You could also divide up the workload by giving certain sections to the appropriate committees; assessments and late fee enforcement to the finance committee, architectural control regulations to the building and grounds committee, etc. The board could also form an advisory homeowners group. If the proposal might be considered controversial, conduct an advisory referendum among the homeowners. By soliciting owner input, the board will know whether it has a mandate or is going against a popular tide of opinion. Most importantly, have an open forum with the owners before the rules are adopted, even when if it is not required by law, so that the board does not come under attack for making such important decisions in a vacuum, even though it is ultimately the board’s decision. The adoption of rules cannot involve just blindly voting for a “stock set.” Rules must mirror a community’s specific goals and values.
Mirroring the community
The term “the spirit versus the letter of the law” is frequently used when a decision is made which is unusually harsh. We often hear the clichés “rules are rules” versus “rules are made to be broken.” Neither extreme is a healthy way of thinking for members of a community association. There must always be a reasonableness factor. If an association votes to ban rentals, then there should be a financial hardship provision. If people are prohibited from making exterior alterations, they should be able to plant some flowers, etc. Where the rule of reason prevails, a community will be much more harmonious. On the other hand, one cannot adopt an entirely “live and let live” attitude because one of the main reasons many people choose to live in a community governed by an association, after maintenance free, is the conformity and appearance guidelines. Again, it comes down to striking a balance.
Mediation before enforcement
Before a board transforms itself into a police department and create a judicial system, it should make an effort to mediate problems. If someone is flaunting the rules and another owner is upset, several board members talking to both sides and persuading them to reach a settlement will deliver a lot more justice at a lot less cost than a judge and jury (and executioner).
If an association is going to have a system of rule enforcement, it must follow proper procedures, assuming the rules are legally enforceable.
Notice, notice and more notice. There is no such thing as too much notice. Every written notification which is documented and delivered is one less defense that can be raised by the violator.
Right to a hearing
According to the United States Constitution, no one can have their rights abridged without “due process of law.” When associations took it upon themselves to enforce their rules with fines, it automatically triggered the issues of civil rights and police powers. Notice is one essential component and a right to a trial (hearing) is another (Section 18.4(e) of the Illinois Condominium Property Act). An association must have procedures in place when conducting a hearing so it has an atmosphere of fairness and impartiality. Otherwise, it has no value and will only damage the association’s efforts to be reasonable.
Ideally a board should appoint a committee to hear the evidence and mete out justice. A three-person committee consisting of non-directors, or one director and two owners would be ideal. If an owner wants to bring a lawyer, they can only do so if they notify the board in advance so the association’s attorney can be present. The board should not be trying to go head-to-head with a trained professional without having its own representation.
The evidence should be in the form of documentation, correspondence, photos and eyewitness testimony. If all the committee has to work with is a written, unsigned complaint, there is not a strong basis in which to find an owner guilty of a violation. Many people complain to the board but do not want to testify. Our system of justice is based upon a plaintiff having the burden of proof and the obligation to provide evidence, and although association hearings are not held to the same lofty standard, they still must make every effort to impart fairness. A single letter with no complaining witness should not be given the same level of credibility as someone who shows up with a witness. The committee must weigh all the evidence before making a decision.
Once the committee has heard and seen all of the evidence, they should dismiss all parties in order to deliberate in private. There is nothing more intimidating or contentious than discussing and ruling on someone’s fate while they are present. Once the committee makes a decision, they then make their recommendation to the board. If the board is sitting as a committee, they should vote on approving its decision at a subsequent open meeting. The specifics do not have to be discussed at an open meeting, only yea or nay on the committee’s decision. The name of the accused can even be kept confidential. The accused should then be notified of the board’s decision in writing.
Distinguishing reasonable versus unreasonable results
The board members must ask themselves, does the punishment fit the crime? Is the violator a first timer or a repeater? Is the violation a threat to health and safety, a general nuisance, or just annoying or does the entire problem just not look very pleasant? These are considerations that go into the final outcome and the resulting punishment/fine must be the equivalent significance of the sin committed. In most instances a warning for a first offender is more important than a court-ordered Temporary Restraining Order, unless someone’s life is in jeopardy.
Ultimately, creating a sense of community is the goal. The rules reflect the attitudes of the board and the enforcement reflects the behavior of the residents. They can both be compatible with the spirit of cooperation so important to the overall culture of a community.