Nothing stays the same forever. As community standards, attitudes and populations shift and evolve, rules and regulations that once made sense or that reflected the views and standards of their day can become antiquated, irrelevant, or just plain silly. Those changes often necessitate the amendment of existing ones—or the drafting of new ones—to fit the new paradigm.
Criteria that a board should use when considering a new rule include its fairness to the entire membership, its enforceability, and its ability to serve a purpose that will better the community. “The first thing a board needs to do is ask themselves why are they doing this,” says attorney Sima L. Kirsch of Sima L. Kirsch PC in Chicago. “What makes a good rule really turns on whether you should be making the rule or not.”
A Good Rule
Andrea Sorgani, president of the Illinois chapter of the Community Associations Institute (CAI-IL) and owner of Alma Property Management in Schaumburg, says that good rules should be “reasonable, objective, enforceable and consistent.”
Fundamentally, a good rule is something that is fair and reasonable to all owners. It needs to be transparent with no ulterior motive and is thought through.
“A fair rule is well-written so when you read it everyone can understand it and it doesn’t need further interpretation,” says Ryan H. Shpritz, an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. “There’s nothing worse than having a rule that owners can’t follow and understand.”
In Illinois, rules may not be in violation of the First Amendment of the Constitution, may not be against the law and may not contradict what’s already in the bylaws.
“When a board does draft a rule, it should always have it looked at by an attorney for those three purposes alone,” Shpritz says. “The reason behind that is enforcement. The worst thing that can happen is you have a rule that needs to be enforced and you realize your policy is improper and unenforceable. That knocks the feet right out of the board and their authority.”
The first thing that a board should do is determine if something should be a bylaw, amendment or rule, and it’s important that they all reflect the laws of the building and that they make sense and are up to date. It’s recommended that boards only change those rules that may contribute to the betterment of the quality of life for the entire community.
“When you make the decision on having a rule, no rule or an amendment, you are already on the path to really starting a good rule, because half the battle that boards face is making those decisions,” Kirsch says. “That’s how the rule will look at when it’s challenged—whether there was a strong purpose.”
A sound enforceable rule is one that is rationally based on a goal of protecting the rights of the residents in the building. In addition, one must clearly think about the methods and procedures for enforcing a rule or policy. Without a system of enforcement, the policy or rule is going to fail.
“Criteria beyond purpose is connecting to a permitted need, which goes to health, safety of owners’ occupants, structural integrity, fiscal stability and unit saleability,” Kirsch says. “Its application has to be uniform, applied evenly (meaning you can’t have different classes) and an enforcement mechanism that’s intended to generate cooperation.”
A Time for Change
Boards considering rule changes should consult their association attorney if they are not certain that they have authority to pass such rules and if they are not certain how to word the rules to ensure that they are reasonable.
“Most boards are adopting rules reactively, so they find a problem and realize there is no policy and they adopt a rule so it applies moving forward,” Shpritz says. “I implore clients to look at all the rules that are out there and make sure they are in place when you have a problem, as opposed to writing a new one when the problem occurs.”
The process to change rules is dependent on what the community’s documents provide. Some documents require membership approval before boards can pass certain rules or, in the most rare circumstances, any rules.
An overwhelming majority of rules changes are done by a vote of the board and a majority is usually enough for a change to happen.
A board contemplating a change or addition to the rules must first confirm that it has the authority to do so under the governing documents. Sometimes boards are constrained by the governing documents with regard to their rule-making authority while other community documents may give boards a very wide berth when it comes to passing rules and regulations.
“Once the process of creating or updating rules has been completed, the manager has reviewed them and the association’s attorney has reviewed and accepted them, a copy of the rules are made and given to all owners of record with a cover letter stating the contents and that there will be a meeting held for the purpose of adopting the rules,” Sorgani says. “The owners have the right to attend the meeting and voice their concerns. Once an open forum has concluded, the board has the right to adopt the rules or may decide to make a change.”
A No-Pet Policy?
Two rule changes that pop up quite a bit concern pets and smoking. Both are hot issues and many times boards try to write rules about these items without following what their governing documents say.
A classic example of this is a board attempting to pass a no pet rule or a no leasing rule when the governing documents are silent on those issues. The absence of such restrictions in the governing documents have been interpreted by the courts as an implied right and any attempt to alter those rights would have to be done via an amendment to the documents rather than via board rule alone.
Other hot topics for rule changes include those dealing with smoking, disabilities and guests.
Mistakes & Blunders
Sometimes boards aren’t trained initially to understand or recognize the basic facts of creating rules and they don’t know that owners don’t get the right to vote on rules and regulations.
One thing to keep in mind is that a rule will not be deemed reasonable if it has a disproportionate impact on some of the community’s residents.
For example, some boards have passed rules not allowing for strollers to be placed under the stairs, but if you’re in a building with a lot of families, this is going to cause an uprising. You need to know your community.
“The biggest mistake boards make is not having your attorney review it and that can lead to liability issues,” Shpritz says. “Another is to know the makeup of your building so if you have a laid-back building, you don’t want 30 pages of strict rules to disrupt the building.”
Any changes to rules that impact unit use in a condominium must be preceded by 14-day advance notice to the membership so that they may attend a board meeting and listen to the dialogue on the reasons the board is contemplating the particular rule changes.
“There should always be a meeting to discuss rules and the board has to decide depending on the seriousness of the rule whether there should be a general meeting to just discuss and then go back and think about it and tweak it and then come back for a meeting to vote them in,” Kirsch says. “They need to give them the time they need according to the declaration—usually 30 days.”
Boards would also be well advised to gather membership input from its residents before passing a rule. This doesn’t mean that the board must get their approval (unless the governing documents requires it as discussed above) but it does mean that an elected board should be sensitive to the membership’s desires.
“Another common mistake boards make is creating rules because they have an axe to grind,” Sorgani says. “Making rules because of one owner who consistently does something that they should not, but it is not stated in the rules.”
Enforcing the Rules
Another faux pas that boards make is that once rules are created, they fail to enforce them or only enforce them selectively.
“Typically, once the rules are sent out the board adopts them as distributed. This is a very time-consuming process and very costly,” Sorgani says. “The board should take all steps to make certain they have made rules which they intend on adopting.”
Also, don’t regulate just for the sake of regulating. If you are going to adopt a rule, use plain English and clearly state what behavior is prohibited.
It’s important to establish your policies early on because it sets a tone for the entire community. Remember, it’s easier to have rules in place to begin with rather than having to train people to learn the policies afterward.
Keith Loria is a freelance writer and a frequent contributor to The Chicagoland Cooperator.