Estate Living Magazine Invest SA - Issue 45 September 2019 | Page 53

C O M M U N I T Y
Increasingly important has been the concept of what legislators view
as reasonable. More frequently, we find that legislators or important
legislative staff members live in community associations. Not
infrequently, they have experienced some aspect of life in community
associations that demonstrated a lack of flexibility or common sense
that led to a conclusion that legislation was necessary to deal with what
is increasingly being viewed as quasi-governmental entities. Many
legislators have a municipal background and are familiar with the
requirements and restrictions that apply to municipal governments.
They do not understand why the same restrictions and requirements
should be applied to community associations. While community
associations are not a precise analogue to municipal governments,
there are, of course, aspects that bear a striking resemblance. Hence,
the opinion of legislators with respect to what constitutes reasonable
behaviour is particularly important if community associations desire
to avoid overly burdensome legislation controlling the powers of
boards of trustees.
L I V I N G
to evolving standards and technology, and opinions about these
types of issues. Put another way, what might have been offensive to
residents in the community 10 years ago may be acceptable today.
Although not all condominium associations would find the presence
of rainwater tanks or solar panels on common elements acceptable,
a higher percentage of owners would find them inoffensive than
would have even five years ago. As a result, a board’s view on water
or energy harvesting technology must take into consideration the
demand that may legitimately alter a board’s concern from absolute
ban on the common elements to considering possible locations that
are not intrusive, or that focus more on the method of installation so
that damage is not done to the physical assets of the association.
Adoption and amendment of rules Enforcement of rules
Boards would be well served to seek input from the community before
adopting significant rules. Although individual owners may complain
about circumstances that convince a board that new rules are required,
the failure to seek buy-in from a significant portion of the community
will doom a new rule from its inception. Furthermore, failure to involve
the community often results in not considering alternatives that may
have been preferable to ones proposed by the board. All rules were not created equal and, as suggested by the cases
reviewed above, need not be enforced equally. In other words, a
board may well choose to more vigorously enforce a rule requiring
a dog owner to pick up after their pet, and more or less ignore a rule
prohibiting anything to be placed on the front steps of a unit, which,
read literally, would prohibit such items as flower pots, benches,
etc. Many if not most association restrictions start with what one
Case studies suggest that boards have the flexibility to review the
significance of a particular deviation from a rule, and to allow isolated
deviations where they do not oppose the intended purpose of the
rule. Even where the purpose of the rule may be violated, these cases
clearly indicate that a single or even several violations will not constitute
enough precedent to prevent future enforcement of the rule should
a board determine that prior exceptions were not prudent.
In most association documents, the board is empowered to adopt and
amend the rules and regulations of the community, except for those
restrictions appearing in the governing document, which require
owner approval. In exercising this rule-making authority, boards should
be careful to take the pulse of the residents of the community before
acting. Experience has taught that many boards have either adopted
rules at serious variance with the prevailing thought of the residents
that they serve, or were about to do so when they asked for resident
input. Accordingly, resident input should be solicited on controversial
issues such as recreational equipment on lots or common areas,
trash removal receptacles and regulations, pet restrictions, holiday
decorations, parking, etc. In addition, boards should be sensitive
We turn now to the practical aspects of the adoption and enforcement
of rules, and suggest approaches that boards should consider. The adoption and amendment of rules and their enforcement,
once adopted, are heavily dependent upon consistent education
of residents. This is particularly important during the rule’s adoption
process. History tells us that, even if a resident objects to the substance
of a rule, if they feel they were given an opportunity for input in the
adoption process, they are more apt to adhere to the rule once in place.
All of the various rules and restrictions of a community should also be
included in the welcome pack given to new members of associations.
Some associations, when adopting amendments to their governing
documents, have even included a requirement that new buyers must
participate in an orientation meeting advising them of the community’s
rules and practices before they may obtain amenities like remotes to
access gates, or gain access to recreational facilities like swimming
pools. In many instances, rule violations are the product of nothing
more than ignorance on the part of the offender.