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Just Say No….
To Negative Rules and Regulations
By Seth Emmer, Esq.
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Community association rules and
regulations are as varied as the communities they govern, but these
documents nonetheless seem to share a single guiding philosophy: “Just
say no!”
- No unit shall be used for these
purposes….
- No drapes shall be hung….
- No pets shall be allowed…
- No vehicles shall park…
No, no, no, no, no. It’s like an endless conversation with a
two-year-old.
This “thou-shalt-not” mentality is partly the fault of the lawyers who
drafted the original condominium documents, establishing the framework
and setting the tone for the rules boards of trustees enact. As anyone
who has ever tried to draft a set of rules is aware, it is a lot
easier to say, “No, you can’t,” than it is to make the more complex,
nuanced judgments required to define what owners may be permitted to
do.
The Problem with “No”
| But saying no can
create problems of its own, as many associations discovered when
their blanket “no flags” rules clashed with the desire of
condominium owners to join in the patriotic displays that followed
the September 11 terrorist attacks. More than anything, that
experience illustrated the need for levels of flexibility and
sensitivity that most community association rules and regulations
lack. |
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Still, the instinct to say no is strong
in the homeowner association environment, because boards assume, and
many owners agree that strict rules adopted in large numbers and
rigidly enforced, are essential to prevent the chaos that would result
if residents were not told specifically what they can and cannot do.
There is no question that community associations need to establish
clear standards and maintain a measure of control. Studies have shown
that one of the major reasons people buy property in condominium
communities or PUDs is because they know the community will be
maintained at a certain level. They know there won’t be any junk cars
on the front lawns or ugly flamingoes in the garden. They expect the
community to look the same five years from now as it does today and
count on the board to make sure that is the case. The challenge for
boards in drafting and enforcing community rules is to reasonably
balance the legitimate desire of owners to maintain certain standards,
with their equally legitimate desire to express themselves and to
individualize their properties.
Changing the Tone
That is not as difficult as it sound. In drafting original documents
today, attorneys can do a much better job of conveying the sense that
flexibility and sensitivity are desirable features in the rules. The
documents might specify, for example, that the board “should provide
for reasonably diverse usage of common areas, taking into
consideration the need to protect unit values and the reasonable
sensitivity of unit owners.” That establishes a very different tone
and conveys a different message than a clause that says, “Common area
usage shall be limited to….”
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Boards drafting new
rules or amending existing ones also can do much to lighten the
negative tone in the documents, and by extension, in the community
itself, by simply replacing all of those “thou shalt nots” with a
lot more “thou mays.” It is also helpful to explain the purpose of
a rule, or establish a context for it, because owners are less
likely to resent and resist rules they understand.
An old style regulation would say, “No
planting allowed anywhere in the common areas.” The new style
alternative might approach the same issue this way: “The
association encourages all residents to take an active interest in
the appearance of the grounds. Accordingly, owners may plant any
of the following shrubs and plants in the following designated
areas.” |
Similarly, the old “no flags allowed”
rule might give way (as it did in many associations after September
11) to a more flexible regulation that acknowledges the desire to
display flags as reasonable, but also notes the obvious need to
prohibit offensive or derogatory emblems, specifies the kinds of flags
that are permitted, describes how large they can be, and specifies
how, where, and when they can be displayed. Again, the rules are
describing what owners can do, as opposed to identifying something
else the community forbids.
Less is More
Community association boards often assume that the more rules they
enact the fewer problems they will have, but in fact, multiplying the
rules simply multiplies the opportunities for friction and resentment
in the community. When it comes to rulemaking, less really is more.
Boards should adopt rules to respond to existing problems, but not to
anticipate problems that may develop in the future. If it isn’t a
problem today, you don’t need a rule to prohibit or regulate it.
There are many areas in which rules are either unnecessarily
restrictive, or simply unnecessary. For example:
| Outside
enclosures. Many associations prohibit outside enclosures
that would turn decks or patios into three-season rooms. The
obvious concern is a patchwork of architectural styles (some less
lovely than others) that would result in the absence of
association controls. But instead of simply banning an improvement
that many owners would like to make and that could enhance the
value and appeal of the property, the board could specify one
design, or even two or three that would be acceptable. This would
turn a “no” into a “yes” that allows individual owners to
personalize their units, but within limits ensuring that no one
would build anything truly horrible and disgusting. |
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Interior
changes. This is another area where restrictions simply
annoy owners without doing much to further legitimate association
interests. The concern is not, or should not be, the interior
appearance of the unit (which shouldn’t matter to anyone except
the people living there) but its structural integrity. So instead
of prohibiting all interior changes or requiring board approval of
them, the rule could specify that all interior changes are allowed
as long as they don’t jeopardize the structure of the unit or the
building.
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| Business usage.
A blanket ban on home offices and business usage of units is
another standard community association “no you can’t” that is both
unnecessary and out-of-step with the times. If other residents
aren’t bothered by the activity or don’t even notice it, as is the
case with most home-based businesses today, the association rules
should not prohibit it. A rule should target the problem. In this
case, the problem, or the potential problem, is not the existence
of a home business per se but the traffic some enterprises might
generate in the community. |
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| That is a
legitimate concern if an owner plans to open a grocery store or an
animal clinic, but hardly an issue for the telecommuting
activities that most home-businesses entail today. So instead of
establishing a total ban, a rule might simply note that home
businesses are permissible as long as they do not produce customer
traffic or an unacceptably high volume of package deliveries.
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This “kinder, gentler” approach to
rulemaking can do much to ease tensions between homeowners and their
boards and to set a more positive tone in the community overall. But
it can be difficult to overcome the fear that a lighter touch will
lead to a lessening of standards and a loss of control that will
threaten property values. In fact, the opposite is true. Too many
rules enforced with too little sensitivity can have a stifling effect,
creating an oppressive environment that many owners will find
unpleasant and some will find intolerable. Ultimately, it is unhappy
owners who pose the greatest threat to future sales and to community
property values.
| Boards that decide a
change in rule-making style makes sense should not initiate the
changes on their own. As much as possible, the initiative should
come from the owners themselves. As a first step, the board should
establish a committee that includes one or two trustees but is
dominated by members who are not on the board, to ensure plenty of
input from community residents. The committee, in turn, should
present its recommendations to the community as a whole. If
everyone has a chance to comment, owners are more likely to view
the new rules not as a reflection of controls the trustees think
are needed, but rather as a statement of the way residents
themselves have decided they want to live. |
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