by our courts. In determining whether boards and municipal portion of the community will doom a new
have acted in a reasonable fashion, courts governments. They do not understand why
restrictions
rule from its inception. Furthermore, failure
have repeatedly looked at certain attributes the requirements to involve the community often results in not
of the board’s decision-making process. Did should be applied to community associations. considering alternatives that may have been
the board deliberate? In other words, did While community associations are not a preferable to ones proposed by the board.
it take time in reaching a decision, or was precise analogue to municipal governments, the decision generated in a purely reactive there are, of course, aspects that bear a In most association documents, the board is
manner? If the board did deliberate, did it take striking resemblance. Hence, the opinion of empowered to adopt and amend the rules
into consideration alternatives – not only the legislators with respect to what constitutes and regulations of the community, except for
alternatives offered by the owner against reasonable behaviour is particularly important those restrictions appearing in the governing
whom a rule is being enforced, but other if community associations desire to avoid document, which require owner approval.
alternatives that had not yet been explored? overly burdensome legislation controlling the In
And did the board exercise restraint? In powers of boards. boards should be careful to take the pulse
same
that
apply
restrictions
and
to
exercising
this
rule-making
authority,
of the residents of the community before
other words, did it adopt or enforce a rule
in a manner that went beyond responding Case studies suggest that boards have acting. Experience has taught us that many
to a problem that the rule was intended to the flexibility to review the significance of a boards have either adopted rules at serious
address? Even where a particular judge may particular deviation from a rule, and to allow variance with the prevailing thought of the
find that he or she would have determined a isolated deviations where they do not oppose residents that they serve, or were about to
matter differently, if the board’s decision was the intended purpose of the rule. Even where do so when they asked for resident input.
reached through a deliberative process in the purpose of the rule may be violated, these Accordingly, resident input should be solicited
which various alternatives were explored (and cases clearly indicate that a single or even on controversial issues such as recreational
the least confrontational approach that would several violations will not constitute enough equipment on stands or common areas,
cure the ill that the rule sought to address precedent to prevent future enforcement of waste removal receptacles and regulations,
was chosen) courts will routinely uphold the the rule should a board determine that prior pet restrictions, holiday decorations, parking,
board decision. exceptions were not prudent. etc. In addition, boards should be sensitive
Increasingly important has been the concept We turn now to the practical aspects of the opinions about these types of issues. Put
of adoption and enforcement of rules, and another way, what might have been offensive
More frequently, we find that legislators or suggest to residents in the community 10 years ago
important legislative staff members live in consider.
to evolving standards and technology, and
what
legislators
community
view
associations.
as
Not
reasonable.
approaches
that
boards
should
may be acceptable today. Although not all
residential
infrequently,
they have experienced some aspect of life in
ADOPTION AND AMENDMENT OF
community
associations
would
find the presence of rainwater tanks or solar
community associations that demonstrated RULES a lack of flexibility or common sense that Boards would be well served to seek input owners would find them inoffensive than
led to a conclusion that legislation was from adopting would have even five years ago. As a result,
necessary to deal with what is increasingly significant rules. Although individual owners a board’s view on water or energy harvesting
being viewed as quasi-governmental entities. may that technology must take into consideration the
Many legislators have a municipal background convince a board that new rules are required, demand that may legitimately alter a board’s
and the failure to seek buy-in from a significant concern from absolute ban to considering
are
familiar
with
the
requirements
the
panels acceptable, a higher percentage of
community
complain
about
before
circumstances
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 , and the aesthetics
of the estate are not affected.
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
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INDUSTRY JOURNAL