In creating reasonable rules following a process will help ensure that the rule is necessary as well as valid:
- Determine the need for the proposed rule. Good rules accomplish exactly what the board intended them to accomplish. Unfortunately, some associations try to solve a problem by passing rules that are either too harsh or too broad.
- Define who and what is to be covered by the rule and the time periods involved for implementation.
- Define the specific parameters of the rule, the actions required and the penalties for violation. Simple, clear, and concise language as to the rule is essential to understanding andenforcement.If the rule involves the establishment of guidelines or discretion as to enforcement, set forth the initial guidelines at the outset. (This is particularly important with architectural controenforcement.)
- Don’t create a rule that is impossible to monitor. For example, don’t prohibit parking an RV for more than 48 hours. It requires the association to somehow time how long each vehicle is being parked. Connect the rule to the problem – if the problem is RV’s parked in the area then do not allow any parking unless actively loading or unloading. It allows what is necessary and stops what is the underlying problem without making homeowners time their neighbors.
- Test the rule for compliance with constraints. Evaluate the rule and the extent to which it complies with constraints dealing with constitutional and other rights such as reasonableness, impartiality, civil rights, due process, fairness, equal protection, etc.Verify that the rule is not inconsistent with specific document provisions already in place, such as requirements for notice, procedures for adoption, or penalties which may be imposed.
- Give owners notice and build consensus. Most rules, covenants, and laws are successful because of voluntary compliance and acceptance.Give notice of a proposed rule and seek owner and resident input to the provision of the rule before formal adoption to help remove opposition and build consensus.
- Upon adoption, provide ample notice and publication of the adopted rule and the time frame when enforcement will begin.
Consult with your attorney. Creating or amending rules is no different then amending your governing documents, it can be complex and doing it right the first time is invaluable. Be aware of undertaking this process without the assistance of legal counsel. You can save a great deal of time and money by working with an attorney who specializes in community association law from the beginning of the process instead of calling upon one when trying to enforce a rule only to find out it is not enforceable.