Rules about Rules

By: Scott Welker

When an association considers adopting new regulations, they often turn to their declaration (CC&Rs) or bylaws.  Association rules are sometimes overlooked and underutilized. However they can be the most efficient and flexible means for implementing restrictions or procedures.    

One of the primary difference between Association Rules and other governing documents is that, generally speaking, an association board can adopt, cancel, or modify rules without the general membership voting on the matter.  This is done by a simple resolution. There are, however, some legal principals to be aware of.  

First, rules must be created under the authoritative umbrella of the declaration.  Even in PUD associations where there is express, statutory authority for a board to create rules, your declaration should have enabling language that grants the board rule-making authority.  A rule cannot exceed the authority of your other governing documents nor can it contradict them.  

In a sense, rules are where the rubber really hits the road for association regulations.  Your other governing documents might speak generally about a board’s authority to regulate activity on common area, but the rules are often where more detailed provisions will be found such as who may access facilities and at what times.  That being the case, a board runs the risk of violating the Fair Housing Act or, in some cases, even the Americans with Disabilities Act when crafting rules. For that reason (and others) it is advisable to consult with an attorney on any rule changes. 

After rules changes are drafted, the board needs to adopt them.  If yours is a PUD (non-condominium) association, you are required to do the following:

• At least 15 days before meeting to discuss the change, deliver written notice to each owner that the change is being considered;
• At the meeting, provide an open forum for members to be heard before conducting a board-vote on the change;
• Within 15 days after the change is made, deliver a copy of the change to each owner.

The same process is not required in condominium associations but, in those associations, you will, of course, need to deliver copies of any rule changes to all members. 

Rules are very useful to an association when used correctly.  A living document containing all the rules in one place should be maintained and made accessible to the members.  I recommend using rules to their full capacity. Be sure, though, that you are drafting legally enforceable rules and following the appropriate procedures for implementation so that when it comes time to enforce, your efforts won’t be defeated.