Drafting enforceable association rules is a form of art. It’s an art in the sense that you have to know when it’s too much, when it’s too little, when it needs clarification, and when it conflicts with the law. For these reasons, most HOA legal practitioners recommend that draft rules be reviewed by legal counsel prior to adoption. Unfortunately, however, this does not always happen and associations may find themselves in hot water attempting to enforce unlawful, or otherwise unenforceable, rules.
Below are a few examples of typical rule-drafting mistakes and tips for not making them:
Tip #1
Do NOT write rules that conflict with provisions of your declaration, bylaws, or articles of incorporation—such rules will not be enforceable.
Example:
Declaration provides:
All parking spaces in the common area parking lot must be designated as guest parking and may not be utilized by owners.
Rule provides:
No owner may park in the common area parking lot unless he/she has obtained prior written approval from the board.
Tip #2
Do NOT write rules singling out children (or primarily impacting children)—this is a form of familial discrimination that will expose an association and its board to a great deal of liability.
Examples:
- No child under 14 may be on common area after 8pm without adult supervision.
- All tricycles and toys must be removed from common area after use.
- Children may not run around or be involved in horseplay in pool area.
Tip #3
Do NOT write rules containing unclear or ambiguous terms. If the terminology is unclear, subjective, or ambiguous, owners will have no way of knowing what they can and cannot do. Try to use concise terms and concrete examples.
Examples:
- No unsightly objects may be kept on decks.
- No offensive behavior is allowed in the pool area.
- No inappropriate activities may be conducted on common areas.
Tip #4
Do NOT write rules that are unreasonable. In other words, don’t draft rules that are unreasonably invasive of owners’ rights or that cannot be reasonably explained to benefit the community.
Examples:
- No owner may retain a contractor without prior board approval.
- Garage doors may only be open when entering and exiting the garage and may not be open for more than 15 seconds.
- Absolutely nothing may be kept on patios or decks.
Tip #5
Do NOT write rules that conflict with State or Federal laws. Since most board members are not aware of the pertinent laws impacting their communities, it is imperative that associations allow their counsel to review draft rules.
Examples:
- No satellite dishes or other antennae may be installed on townhome roofs.
- In the event an owner shall violate these rules, and immediate fine of $100 will be imposed.
- No signs or flags of any kind may be placed on the lots.
- No ADUs may be constructed on any lot.
Tip #6
Do NOT write rules treating certain religions differently than other religions. Although associations may, for example, prohibit religious displays, they cannot prohibit religious displays of only certain religions. All religions, regardless of popularity, must be treated the same.
Examples:
- Christmas lights and decorations may be put up 45 days before the holiday and taken down 30 days after the holiday.
- The only religious activities permitted in the clubhouse, are events sponsored by a local church.
- No religious activity may be performed in the clubhouse, except that one Christmas mass may be held in December of each year.
Should you have any further questions concerning creation and adoption of enforceable rules, please do not hesitate to contact an Altitude attorney at 303.432.9999 or at [email protected].