“Enforcing Rules in Community Associations” – KSN attorney Kerry Bartell discusses rule enforcement in community associations. She addresses how rules impact community safety and protect property values. Kerry also reviews the importance of updating rules to keep up with changes in the law, board member responsibilities, best practices, and more. (24 mins.)

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Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.

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Episode Transcription

You’re listening to the KSN Podcast. And on this episode, KSN attorney Kerry Bartell discusses enforcing rules in community associations.

Welcome to the KSN podcast, where you’ll hear from KSN attorneys as they share their experience and insight on legal issues surrounding community association law, collections, landlord tenant law, and property tax appeals. On this episode, KSN attorney Kerry Bartell discusses rule enforcement in community associations.

She discusses community safety, the importance of updating rules to keep up with changes in the law, board member responsibilities, best practices, and more. The full presentation, including the video, is available exclusively on Brainy Board. Here’s a short introduction on Brainy Board before we get to today’s topic.

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Hi everyone. Today, I’m going to be talking about enforcing rules in your condominium or homeowner association.

We often get a lot of questions about rules and regulations and sort of where they fit into the general picture of your governing documents. But this is also a place where a lot of conflicts and sadly litigation come out of the rules and regulations. So our goal today is to just give you a brief overview of how to adapt them, how to enforce them, and what happens with the rules and regulations to ensure that the association and the board are utilizing them efficiently and properly.

So today’s agenda, we’re going to talk about what are rules and regulations, what are they supposed to do, why they are important to your association, when do you need to update them, and how do they work. We will talk about each of these different issues. Again, we’re providing a general and sort of a basic overview of rules and regulations. But as we go through this seminar, make sure you sort of keep notes or you can always follow up with one of us after today’s sessions.

All right, rules and regulations. What are they? The rules and regulations for a community association are adapted by the board for items that are not detailed in the governing documents. So they are not amendments or changes to the declaration and bylaws. But they are a supplemental document and they can address such issues as property appearance so nobody can install a purple door on their unit or even maintain your landscaping. What are those requirements and what are you supposed to be doing with your landscaping, flowers, grass cutting, those types of things.

Noises and disturbances. This is often a hot topic. This is where we talk about quiet hours or you can’t play your drums at four o’clock in the morning.

You can also address pet rules. So this is the pick up the poop rules, those kinds of things. How unit owners are supposed to use the common areas. It can also include pool rules. Or clubhouse rules, those types of things. If you have amenities such as those. Parking rules are often a hot topic for associations.

How are people supposed to utilize guest parking? When can they park on the street or not park on the street? Those types of issues can be addressed in the rules and regulations. And then a more recent topic, although quite important particularly in larger cities, is the issue of short-term rentals. These are all types of rules and regulations that the board can adapt for an association.

All right, so rules and regulations. What are they? We like to say that they are the living and breathing enforcement document for the association. This is where you have your enforcement rules, your violation rules, fines are often or should be detailed in the rules and regulations.

They cannot, however, be inconsistent, nor do they supersede the provisions contained in an association’s declaration or bylaws. For instance, if your declaration and or bylaws provide that owners can have up to two pets in their unit, the rules and regulations could not then say you’re only allowed to have one pet.

In the hierarchy of sort of governing documents, the declaration is always going to control over the rules and regulations. You don’t want to confuse the rules and regulations with the declaration and bylaws. I hear all the time from my boards or even frankly owners, saying, “Well, the rules and regulations say X, Y, Z.” And I always have to clarify, wait a second, is that the rules and regulations or is that the declaration and bylaws? And those serve two different purposes.

The declarations and bylaws typically do not address day-to-day living in an association. The declaration and bylaws provide the broad stroke restrictions or covenant enforcement. So the rules and regulations help to fill in those gaps. So why are they important? The rules and regulations provide more detail on how owners need to use the property and engage with their neighbors and the board.

The rules and regulations can serve to keep the association safe but also protect the property values, right? Again, you don’t want purple doors and polka dot doors. And you don’t want non-conforming landscaping. But you also want to make sure that owners, if you have streets that you control, owners know that they can’t go 40 miles an hour down the residential street.

So you need to, as a board, keep those goals in mind. I always tell my associations when you’re drafting or preparing rules and regulations, try to have an idea of what your goal is with regard to a particular rule. What are you trying to do with it? Is it safety? Is it protecting property values? Is it making sure that neighbors don’t go at each other for any particular reason? That will help you draft your rules and regulations.

When you are thinking about drafting rules and regulations, you also have to consider how they will be interpreted. This is especially important when you’re applying old rules to present issues. And also you have to take into account that owners are going to interpret the implementation of the rules and regulations in different ways.

What I may think is a reasonable amount of noise, my neighbor may not agree. And so the rules and regulations should help the board try to navigate those types of disputes among owners. You also need to use the rules and regulations to serve your enforcement ability. So when residents don’t follow the rules and regulations, The board needs to know what the process is for enforcement and then also be prepared to enforce them consistently.

I just tell my boards if you have a rule and then somebody violates it and the board is saying: “Yeah, well, we don’t really care that much. That’s not such a big deal anymore.” Or: “We don’t really think that’s a bad thing.” Then you should be updating your rules and taking that rule out.

Understand that owners are relying on the rules and regulations just as much as the board is. And if I see I’m not allowed to do something in the rules and regulations, I expect that nobody else is allowed to do that as well. So you want to make sure that you’re updating them to accurately reflect what the board wants to enforce or not.

All right, so talking about updating rules and regulations. These need to be updated. As we said earlier, they are a living and breathing document. Our recommendation typically is that associations should plan to review their rules and regulations every three to five years. Obviously if a new issue arises or something happens and the board didn’t contemplate that issue in their original draft of the rules and regulations, you may need to update them more frequently. But generally have a quick review.

This is a great area, by the way, for a board to appoint a commission or committee. A way to get owners to be involved in the drafting of the rules and regulations and give them some ownership of it. But it also is a project that can easily be taken off the board’s plate and given to a group of owners so that they can review it, provide an initial draft and then let the board take it from there.

Keep in mind that governing laws, ordinances, and other regulations can change. Over the past 10 years, we as association attorneys have noticed certainly that our legislatures are much more aware of community associations. And so the law is trying to address that. And so these laws, ordinances, and other regulations can change quite often.

A huge impact on rules and regulations has been new technology and trends. You know, by the way, five years ago we rarely if ever in our industry did video meetings. So Zoom, the idea of hybrid meetings, those are new technology issues that the rules and regulations can address.

Doorbell camera cameras and security cameras are huge. We never talked about those because they were not commercially available. Now they are.

Another one is drones. Getting more and more questions about: “Hey, we’ve got a guy who owns a drone. What are the privacy implications? What can we control and not control?” So these are all instances where the rules and regulations can be updated to address those concerns.

Electric vehicles are another one. You also want to review your rules and regulations in order to take out outdated rules. Right? Again, sort of what I was alluding to before, there may be rules and regulations that nobody has enforced, nobody cares about, or the demographic, the character, and the nature of your community has changed. So things that may have been important to the community 10 years ago are no longer important. It’s another opportunity to update your rules and regulations.

Alright, rule enforcement and how it works. You know, it is important to establish rules and regulations regarding enforcement because it’s really no good having a comprehensive and effective set of rules if you have no way in that same document to enforce them.

The declaration and the bylaws typically only say that the board has a right to charge a fine after a hearing or they can take other remedial actions. But again, it is very broad and doesn’t provide a lot of guidance. So typical standard procedures for an enforcement or violation policy in the rules and regulations, those are going to include that the board may or may not have to issue a warning letter, or there’s a schedule of fines, or there may be some ability for the association to charge back costs if they need to correct a violation. This is typically true as an architectural violation but it does require a board vote prior to acting on violation enforcement.

So make sure that you’re following those procedures as well. And talking to the association’s attorney regarding the procedural steps that you need to take in order to enforce your violations. Residents should also be notified through the correct form of communication. Advising them of the alleged violations so that they have an opportunity to either cure that violation or not do it again.

You know, when I send letters for not picking up your dog poop, there’s a part in my violation letter that says: “Hey, listen, don’t do this again. And if you do do this again, you’re going to start to incur or be assessed fines.” The attorney again can help the association and the board develop those standard letters, develop your notices of violation and notices of hearing so that it’s all in compliance.

With your governing documents, the rules, and then governing law, we also recommend that you allow the owner time to correct the violation. I have had one association where there was somebody who put up a gazebo and they weren’t supposed to put up a gazebo. And the board sent them a notice of violation saying: “We expect that to be removed within 48 hours.”

And I said, well, that’s not really reasonable, right? It’s a whole structure. They’re going to have to make sure that they remove it carefully. That it’s safe. But also they’re going to have to restore the landscaping that they damaged as a result. So you need to look at the nature of the violation and then determine what is a reasonable amount of time for the owner to correct that violation.

And that’s something again that we can help with or just use general good sense. One thing that I always find important to reinforce is that when you are enforcing the rules and regulations, one of or maybe the most important thing that a board can do is ensure that they’re enforcing the rules and regulations consistently.

If I can’t have a gazebo, that means that the board member’s best friend down the street can’t have a gazebo. A failure to be consistent in enforcement of the rules and regulations is an open door for an owner to try to use a defense that the association was utilizing selective enforcement.

And often we get discrimination claims that arise out of that as well. So you want to be really careful that you’re inconsistently enforcing the rules and regulations.

All right, so I know that we’ve got a couple of questions so I’m going to go ahead and read those. So a question has come in: “What goes first as far as order, the association’s governing document: local laws, state laws, or federal laws?”

And how does that work, especially if the board members are not aware of the laws, right? That’s not your job. When we talk about the hierarchy of governing documents and what controls over which part, we go from the top to the bottom. So federal laws are going to be first. State laws are second. Local ordinances are third. Then we look at the declaration and the bylaws and the plat of survey, which are often sort of on the same level. And then we talk about rules and regulations. So again, rules and regulations are at the bottom of the barrel. And the rules and regulations have to comply with everything above it.

Board members are not expected to understand or know all of the various laws that are above them. It’s a really important part of the process is to make sure that the association’s attorney is reviewing those draft rules and regulations. Because that is our job and so we can help you and help guide the board in navigating all the various documents, statutes, whatever they are, that can impact what the rules and regulations can actually look like. So reach out to your attorney and we can help navigate that process.

All right. Here’s another question. I get this often, by the way. “I know our association has our declaration recorded with the with the county. Do our rules need to be recorded and do we need to re-record them as we have them updated?”

So the answer is no. The whole idea of the rules and regulations is that they’re a living and breathing document, as I keep saying. And that they are easily amended. So again, versus an amendment to the declaration, which has to be approved by the ownership and reported with the County, the rules and regulations on purpose are only approved by the board of directors and they do not need to be recorded.

There are notice requirements with regard to how they are adopted. So make sure you’re asking that question of your attorney as well. How do we properly adopt these. Is it just a board vote. And the reason for that is, again, they’re sort of a working document. The law recognizes that we need an easier path to amend those documents to account for changes in the community or new technology or some of these other factors that are impacting what the rules and regulations can do and say. So they are a much easier document to revise.

All right, looks like the last question, as far as keeping association documents. “How long is the board responsible for maintaining them in storage? Again, another question that we get quite often.

Associations get a great deal of documentation, including budgets, minutes, contracts, you have owner information, voting records, insurance records. There’s all of this documentation. Then on top of that, you may have board turnover. You may have management turnover. And so it’s really important to adopt a document retention policy so that the current board and future boards, your managers, anybody else who’s handling records for the association knows how your particular association wants to ensure that that document retention is consistent and in compliance with the law governing that policy.

You understand that there are different retention requirements for different types of documents. You have to hold minutes much longer than you have to hold ballots and proxies for an election, for instance. So again, talk to your association’s attorney. They can help you draft that document retention policy so that you’re in compliance with the statute, but also it’s not so cumbersome and an administrative burden.

I hope this presentation was helpful. And as always, If you’re a board member or property manager with rule enforcement issues in your community or any legal issues in your community association, do not hesitate to contact KSN, visit ksnlaw.com. Reach out to any of our attorneys and we’ll be able to assist. Thank you again.

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