By: Matthew C. Collins | Community Assets Magazine
Are you overlooking your greatest asset for harmonious community living? While often relegated to an administrative afterthought, rules and regulations are the most adaptable tools for community association management. Well-crafted rules empower effective management and cultivate a positive environment within a community. But ignore them at your peril. Rules left alone too long start plotting mischief like gremlins after midnight.
Unlike declarations and bylaws, rules and regulations can usually be amended by the board without unit owner approval. However, they cannot override or conflict with the declarations or bylaws. This flexibility makes rules and regulations well-suited to address communities’ evolving needs.
Communities can stay current with emerging trends by implementing effective rules and regulations. For instance, nearly half of the states in the country (including New Jersey, Delaware, and Maryland) have statutes restricting community associations from regulating solar panels. Additionally, at least seven states have pending or enacted legislation that limits a community association’s authority over electronic vehicle (EV) chargers. Most of these laws prohibit outright bans and unreasonable regulations that effectively preclude the meaningful use of these devices.
Since similar laws regarding solar panels and EV chargers could be passed in Pennsylvania, board members and managers should start planning now. It is far easier to set up clear rules from the beginning than to deal with problems after people have already started changing their homes. Moreover, there is a lot of helpful information out there for creating fair and reasonable guidelines. Adopting regulations after the fact or on an ad hoc basis can lead to unnecessary stress and conflict.
Staying with the times also means removing outdated language and concepts from rules and regulations. For example, parking rules adopted before land yachts became the standard form of transportation in many suburbs may need to be revisited. Some older regulations may even violate the law, such as restrictions on displaying flags that conflict with the Freedom to Display the American Flag Act (see article on Page 28). Banning certain age groups from amenities (e.g., “no children under 12”) or imposing greater occupancy limits than building or fire codes may violate the federal Fair Housing Act or state equivalents.
Older regulations that fail to distinguish between pets, support animals and service animals can also be a source of unnecessary stress and confusion. For example, the use of “seeing-eye dog” is almost always an indicator that the rules and regulations have not kept with the times. However, most problems with animal and pet regulations are not that obvious. If even a modest sheen of dust can be seen on an association’s animal and pet regulations, it is a good idea to have an attorney review for compliance with federal and state law.
Another frequent source of friction is outdated technology-related rules drafted during the Facsimile Era (a short-lived sub-era of the Pleistocene marked by dial tones, tangled phone cords, and lawyers yelling “did the fax go through?”). Older regulations often address satellite dishes, antennas or exterior wiring in ways that no longer align with federal law or modern living. The features of modern living include high-speed internet, remote work setups, video doorbells, exterior cameras or package-delivery infrastructure. Rules that flatly prohibit exterior devices, visible wiring or common-element equipment can conflict with federal protections (such as the Federal Communications Commission’s (FCC) Over-the-Air Reception Devices Rule (OTARD)) or prevent reasonable, low-impact installations that have become commonplace. Updating such rules to balance resident expectations with aesthetics, safety and installation standards invites less controversy than outright bans.
Now for the gremlins (for the younger readers, a movie bearing this name was released in 1984 and provides keen insight into community association management). These are the forgotten rules that are no longer enforced. To appreciate the problems posed by such rules, managers and board members must realize that associations have a duty to enforce them. If injury to a person or property results from failing to do so, then the association faces liability for the injury. Common examples include weight restrictions on dogs or outright dog bans. If an association has a 30 lb. weight restriction for dogs yet permits such unit-owner affinity groups as the Mastiff Load-Bearing Dog Caucus or the Great Dane Common-Element Occupancy Group, then the association has little more than an uncontained risk. Much like ignoring the “no food after midnight” sign on the Mogwai cage (see previous film reference). Simply stated, if the rule is no longer enforced, then it should probably be removed.
For these reasons, associations should form committees that routinely review the rules and regulations to ensure they keep pace with national and state trends as well as the unique characteristics of their communities. In addition, it is a good idea to have your rules and regulations regularly reviewed by an insurance professional and attorney.
Many of the principles discussed here apply equally to declarations and bylaws. Although those documents are less flexible than rules and regulations, changes to the law may permit boards to adopt certain amendments without unit-owner approval when supported by an independent legal opinion. In all cases, regular review of governing documents helps prevent internal inconsistencies, ensures compliance with current law and identifies potential amendments that reflect the community’s changing needs.
About the Author
Matthew C. Collins is chair of Horn Williamson’s Community Association Group, representing condominium, homeowner and cooperative associations throughout Pennsylvania. He provides clients with advice, enabling them to navigate complex situations and resolve issues in a practical and cost-effective manner. Matt can be reached at mcollins@hornwilliamson.com and 267.282.6057.