Estate Living Magazine Invest SA - Issue 45 September 2019 | Page 52

BEING
REASONABLE
C O M M U N I T Y
L I V I N G
Most community associations seek to enforce their
rules while still maintaining a harmonious community
that the residents view as a desirable place to live. At
times, though, these goals seem to be contradictory,
and strictly enforcing the rules can result in
controversy.
Recent events, such as attempts to enforce association restrictions
against flying flags, have generated significant media attention and, as
a result, attention from state and local legislatures. These goals need
not always be treated as conflicting. The use of common sense and
flexibility allows the association to enforce the essential purpose of a
rule, while not dragging the association into controversy that divides
the community.
Many governing board members believe that the failure to enforce
rules in every instance will result in the loss of their ability to enforce
the same rules in the future. We also regularly hear boards espouse the
theory that allowing a deviation from a rule in one instance creates a
precedent that will then obligate the board to allow similar deviations
from the same rule in every instance. For the most part, these are
canards that are not well grounded in the law, and force associations
into positions of inflexibility, resulting in the belief that associations
are cold and lacking in humanity, and require a legislative reining in.
This article examines the legal underpinnings for these beliefs, and
offers practical solutions to avoid unnecessary disharmony.
To be sure, exercising flexibility and discretion requires more effort.
An issue must be examined in greater detail, various alternatives must
be considered, and a decision reached that supports the intended
purpose of a rule while avoiding needlessly strict interpretations.
Changes in the values of the community, the culture at large and
current events must all be factored in. Many board members may
prefer the black-and-white approach because it simplifies the process,
and allows board members to devote more time to what are viewed as
the essential functions of a board – reviewing contract specifications,
budgeting and so forth. However, it ignores the fact that the community
association field has learned that, perhaps, the most important function
of a board – and a factor that builds value in a community just as much
as the beauty of the landscaping – is the sense of harmony that exists
in the community.
In this context the word ‘reasonable’ is difficult to define. All parties in
a dispute believe that they are reasonable and the other party is not.
Often, the basis for a dispute is the failure of each party to recognise
the interests of the other party, and, before those interests are truly
understood, emotion takes over through escalating verbiage that leads
the parties to believe that there is no purpose in exploring alternatives.
One definition of ‘reasonable’ can be discerned from the opinions
penned by our courts. In determining whether boards have acted
in a reasonable fashion, courts have repeatedly looked at certain
attributes of the board’s decision-making process. Did the board
deliberate? In other words, did it take time in reaching a decision, or
was the decision generated in a purely reactive manner? If the board
did deliberate, did it take into consideration alternatives – not only
the alternatives offered by the owner against whom a rule is being
enforced, but other alternatives that had not yet been explored?
And did the board exercise restraint? In other words, did it adopt or
enforce a rule in a manner that went beyond responding to a problem
that the rule was intended to address? Even where a particular judge
may find that he or she would have determined a matter differently, if
the board’s decision was reached through a deliberative process in
which various alternatives were explored, and the least confrontational
approach that would cure the ill that the rule sought to address was
chosen, courts will routinely uphold boards.