Protect the Peace, Tranquility and Aesthetics of your community with well crafted HOA Rules and Regulations
A tool all community associations may access to protect the peace, quiet, and aesthetics of the community is rules and regulations. Almost all associations’ governing documents give the board of directors (or a rules committee) the power to pass rules. Even without that authority in the documents, both the Oregon Planned Community Act (ORS 94.630) and the Oregon Condominium Act (ORS 100.405) give associations the power to regulate use of the common areas or elements. That being said, association rules are often a double-edged sword. Clear rules that address real problems within the association can go a long way to promoting a sense of community and preventing owner conflicts. Unclear rules, in contrast, may themselves result in conflict as owners fight over the meaning of the rules. Deficient rule may be worse than no rule at all…
6 ways to create great condo & homeowners association rules and regulations that prevent HOA issues & HOA complaints
As a lawyer, I’m frequently asked to review homeowners association rules and regulations. Below are some recommendations I have for board members as they try to draft rules for their community:
- Pass Rules that Comport with Your Governing Documents
The board of directors usually has great flexibility to pass rules it feels are appropriate. Nevertheless, the board should make sure it has the power to pass a proposed rule before adopting it. The board should identify authority in statute or in the association’s governing documents supporting its authority to adopt a rule. Rules cannot conflict with the association’s governing documents; for example, the board can usually clarify ambiguous terms in the documents, such as defining a “commercial vehicle.” However, if the association’s declaration requires owners to install cedar shake roofs, the board cannot allow composite roofing by rule —it must pass a declaration amendment to effect the change.
- Adopt Clear Rules
Good rules are not vague or too discretionary. Your association’s rules should set out clear standards that the board can apply easily and uniformly over time. Words like “reasonable” or “regularly” may be used, but should be avoided if possible.
- Use Terms Consistently
Well-drafted rules avoid using one word to reference two separate things, or two words to refer to one thing. Common problems include interchanging or inconsistently employing the words “tenant,” “resident,” and “owner.” Rule-drafters also frequently interchange the terms: “visitor,” “invitee,” or guest” for one another. If “visitor” and “guest” refer to the same thing, then pick one term and stick with it; if they mean different things, then define each term at the beginning of the rules so that owners know the difference. I would recommend avoiding the term “invitee” all together, as it has a specific legal meaning that you probably do not intend.
- Eliminate Discretion
It’s hard to foresee every possible problem before it arises. In an attempt to solve this problem, boards will sometimes enact vague rules that give the board broad discretion to determine whether a violation has occurred. However, rules that leave everything to the unfettered discretion of the board do not provide owners with adequate notice or guidance about what behavior is prohibited. Discretionary rules also leave the board open to attacks about favoritism and bias. If at all possible, do not leave standards to be determined by the board in an ad hoc manner.
- Don’t Go Overboard
Good rules are not overly complicated. Let’s face the facts: most owners do not read the association declaration or bylaws. Therefore, they probably aren’t going to read the rules you adopt either and—if they do read them—they will most likely only read them once. Your rules should not be so complicated that the owner needs a law degree to decipher their meaning. Simple, straightforward rules in plain English are the easiest to enforce.
- Make Rules Available
Secret rules are not legally effective. You’re association’s rules need to be circulated to the members to be effective. The board should also be aware that rules are not recorded, and so owners who move into the association after the rules are passed will not have a copy. The board should ensure that these new owners are provided a copy of the rules shortly after move-in. It’s also a good idea to make rules available online.
Note: The general recommendations are applicable for most states, but for Washington, Utah, and Idaho specifics (statutes), please email [email protected] with your request!