Adopting Enforceable Rules
Just as there is truth to the saying that “good fences make good neighbors,” the same may be said about developing and maintaining reasonable and clear rules for a community association. Rules provide clear guidance on what is allowed and expected of owners within a community, and thus allow owners to carry on as they wish within those guidelines. While a condominium’s declaration or a subdivision’s deed restrictions generally set broad parameters and restrictions that govern, these documents typically imbue community association boards with the power to create and establish more specific rules and enforcement procedures that are more uniquely tailored to the needs of a particular community. This rule-making process requires boards to review their governing documents and is a matter that should periodically be revisited to ensure that the community’s rules serve its current needs and are enforceable.
To begin, boards must review their governing documents to understand the scope of their authority. A condominium board will typically have a broad scope of rule making authority, while a homeowners’ association will typically, but not always, have less. For instance, some boards may be able to adopt rules requiring lawns to be maintained in a very precise manner. Others, however, may only have the authority to make sure lawns are not kept in a manner that creates nuisance or property risks. Understanding the scope of your board’s authority is critical, and, as such, the first step of rule making must be a review of the community’s foundational documents to gain an understanding of what areas and to what extent the board’s rule making authority can be exercised. It is never a good experience when a board attempts to enforce a community rule against a trouble-making owner, only to find-out that it didn’t have the authority to make or enforce the rule in the first place—and this can be an expensive lesson if learned during litigation. Having a clear understanding of the board’s authority at the time of adopting the rules can help ensure this does not occur.
Questions related to authority and validity of rules, however, cannot exclusively be determined by a review of a community’s governing documents. In many cases, state and federal laws are in place that may negate certain restrictions or require special treatment that is not clearly set forth in the documents. As an example, several community documents contain explicit restrictions against satellite dishes, but the federal government some years ago adopted legislation that demands communities allow satellite dishes under certain conditions. Similarly, there are many fair housing restrictions and case law developments that can turn many rules that may have been adopted in good faith by boards into traps that could lead to costly discrimination claims or other litigation. Once a Board understands the scope of its authority, it can proceed to review the needs of the community and determine what rules are needed or perhaps what rules are unnecessary. Our firm has significant experience in helping our clients create and enforce workable rules for their communities, and one of the main lessons we have learned through this experience is that the process of determining what rules a community would benefit from is unique to each community. As such, we have assisted our clients in addressing a multitude of concerns in a multitude of ways. If your community has not reviewed its rules for some time, is interested in updating its current rules, or has questions about rule enforcement, please contact our office at 614-228-0207 and speak to one of our attorneys.
Mr. Kanitz has been practicing law since 2009 and has gained significant experience in the areas of real estate and creditors’ rights. Mr. Kanitz is admitted to practice in all Ohio courts and the Federal District Courts for both the Northern and the Southern Districts of Ohio and has represented major lending institutions and community associations in more than sixty Ohio counties. Read Jesse Kanitz's full bio.