Rule Creation Recommendations
In his book, Guilt by Association: A Survival Guide for Homeowners, Board Members, and Property Managers, attorney Jordan Shifrin make these recommendations for responsible creation of association rules.
"...in drafting rules and regulations, the Board should create a special committee comprised of one Board member and several interested homeowners...an acceptable draft should be submitted to the associations legal council for review...the final draft should be sent to all homeowners in conjunction with a notice for a special meeting of the association to discuss the rules and regulations."
"...rules should be reviewed and revised annually to stay current with the law and changes in the community."
Be Reasonable: How Community Associations Can Enforce Rules Without Antagonizing Residents, Going to Court, or Starting World War III, was written by Kenneth Budd and sponsored by The Community Associations Institute. They recommend these procedures:
"Residents should have a role
in establishing rules, since they’re the ones who must live by them."
"Surveys are important tools when making important community decisions."
"As with almost all rules, it’s a good idea to survey the community."
In their book titled Working with your Homeowners Association: A guide to effective Community Living, Dr. Marlene Coleman and judge William Huss had this to say:
"Establishing or amending house rules should be one of the best opportunities for the association to practice the democratic process. Open meetings devoted solely to making or amending the rules are the best examples of this...Such meetings would require the usual notice provisions of the other governing documents as well as the due process, or fundamental fairness, necessary for an open and democratic community."
These are the main recommendations made by Dr. Evan McKenzie at the October MHA meeting:
(A) Tax equalization. Condominiums and homeowners
associations are now paying for many services normally provided by local
governments and these costs are added onto homeowners’ assessments. These
services often include streets and sidewalks, recreation areas and facilities
(often including swimming pools), storm water management ponds and facilities,
water and sewer facilities, street lighting and the like. To the extent that
these services are provided to other residents and developments by local
governments through general taxes, the homeowners in condominiums and HOAs are
subject to double taxation.
(B) Provision of basic rights. The basic rights of American citizens are often denied homeowners in condominiums and HOAs. Unless the rights are specified in state law or in association documents, homeowners often do not enjoy the basic rights of freedom of speech, assembly and petition. Further, few if any associations have separation of powers in the enforcement of rules of assessing fines or other penalties for violations. The Board, or a committee thereof, becomes the prosecutor, jury and judge in deciding about alleged rule violations, and the courts will usually not hear appeals from their decisions.
(C) Collective action by homeowners. Owners in condos and HOAs must create mechanisms for their collective action if necessary against managers and boards. Such organizations as the Maryland Homeowners Association can help.
(D) Licensing property managers. Presently, anyone can proclaim themselves a property manager and make contracts with condos and HOAs to manage associations. There is a need for standards through licensing and for discipline, if necessary, through authority to cancel licenses.
(E) Public scrutiny of associations and government oversight. The operations of condominium and homeowners associations need more public scrutiny, especially by the media. There is also a need for some form of government oversight to control abusive practices by developers, managers or boards. State governments could help by creating ombudsmen (as in Nevada) to represent owners in disputes.
(F) Considering associations as communities. Developers and boards have too often set up condos and HOAs as businesses with the relationship between homeowners and boards considered as merely a contractual business relationship. This concept does not fit the proper nature of associations as places of long-term residential living for human beings. Rather than businesses, the associations, if they are ultimately to succeed, must be considered as communities with residents who are citizens with the usual rights and concerns of American citizens.
[These recommendations are taken from a speech by Professor Evan McKenzie to the Maryland Homeowners Association, at Grosvenor Park II in Rockville, Maryland, October 28 1998.]
Be Reasonable: How Community Associations Can Enforce Rules Without Antagonizing Residents, Going to Court, or Starting World War III. By Kenneth Budd. Sponsored by The Community Associations Institute.
This book is available from the CIA as well as Amazon.com, Borders, and Barnes & Noble. It should be required reading for any board member.
Below are some quotes from the book that, if given some consideration, would go along way towards eliminating some of our problems here in Shavano Ridge.
Courts generally agree that
rules that only apply to one or a few owners, or that are unfair to a segment of
owners, cannot be enforced.
If a rule is reasonable, the
association can adopt it, if not, it cannot.
Even reasonable rules should
not be enforced in unreasonable circumstances.
It is generally unwise to
create a rule simply because one neighbor is posing a problem.
Residents should have a role
in establishing rules, since they’re the ones who must live by them.
Complaints from neighbors
should be submitted in writing; this avoids changing stories and failing
Sending the most abrasive
board member to “set this guy straight” will defeat your purpose. Some
attorneys suggest sending a witness.
An unreasonable board is
usually inconsistent. It cannot ignore a rule for six years and then suddenly
decide to enforce it.
Community associations are
democracies. And in any democracy, those accused of violating rules or
restrictions should be able to defend themselves before a jury of their peers.
The hearing should be
There is no law that says
you have to enforce the rules for every violation.
Surveys are important tools
when making important community decisions.
A reasonable board tries to
prevent problems by clearly publicizing the architectural control process in its
Associations should be
cognizant of constitutional rights and make every possible effort to ensure that
such rights are honored and protected.
As with almost all rules, it’s a good idea to survey the community.
Overzealous, unreasonable boards can be more damaging to property values than the violations they so vigorously try to prevent.