Condominium Documents and Condo Rules

In a nation founded on an individual's rights, the wording provided in any given set of community association Covenants, Conditions, and Restrictions (CC&Rs), Declaration or Master Deed (for brevity's sake, we'll call these similar documents "Declaration") is clearly directive and controlling, concepts many people seem to find hard to live with. Obviously, it was the intent of the authors of every Declaration in existence today to place very specific use restrictions on the land within the community in order to provide for the protection of the appearance of that property and to enhance its value into the future.

At first blush, one might say that Declarations seem to violate the basic tenets our forefathers envisioned for this country when we became a nation.Without a doubt, the restrictive nature of Declarations brings inherent challenges to every board member when it comes to their interpretation and implementation.

We know that most sets of rules and regulations require interpretation to facilitate their effective implementation and that the task of understanding and implementing these documents falls squarely on the shoulders of the association's board. In many instances, a board will hire a management company to assist with the application and enforcement of the governing documents.

Generally, association boards fall into two basic categories when it comes to this enforcement task:

1. Those who believe that if the Declaration doesn't specifically state that something is allowed, it is then effectively and completely prohibited - a clearblack and white issue.
   
   
   
2. Others who understand that if the Declaration doesn't state that something is specifically prohibited, it can then be allowed under the proper circumstances (this is the more reasonable approach).

There is, of course, a third strategy that some Boards may attempt to use and this one must be avoided at all cost: the selective, or "pick and choose" method of interpretation and enforcement. While this method may be appealing on many subjective levels, it will quickly get the board into trouble with the membership.

So, how do we avoid infringing on the rights of owners while enforcing the governing documents? This is the dilemma most board membersface every day. They must choose between many plausible interpretations of often poorly written and sometimes "well aged" governing documents. Of course, any method of interpretation and enforcement a board may choose can prove problematic, but those boards who subscribe to the first philosophy and apply an unbending interpretation of the Declaration are probably most often challenged by the membership, followed closely by those boards who chose the selective method of enforcement. Both the literal and selective enforcement boards tend to end up at odds with what is oftentimes a majority of angry owners.Often the association manager becomes an additional or perhaps even the primary target for these disgruntled homeowners. After all, managers and the companies they work for are the ones the property owners most frequently interact with, not the members of the board. Not an enjoyable situation to find oneself, in any case.

Boards often feel that a "black and white" interpretation of the Declaration offers everyone concerned the most protection should a conflict arise. However, they tend to lose sight of the fact that not everyone or every situation is identical in all aspects. Most Declarations contain provisions allowing the board some level of latitude for intepration, and it is important to remember that, so long as they have applied the tenets of the document fairly and consistently, with reasonableness and compassion, the board is protected under the law.

How do we achieve this type of moderation and consistency? We should start with a review of the current inspection and enforcement policies in place for the association. If something more middle-of-the-road is in order, the association manager can provide examples of policies from similar communities that work well or that can be modified to fall within the parameters of the Association's governing documents. Once the enforcement criteria have been established, representatives of the board should ride along on the next inspection of the community, allowing them to see first hand the way an inspection is conducted and what owners are being cited for. The board members then have the opportunity to revise the enforcement process if they determine that the existing procedure is too strict and unreasonable, or to continue with what they conclude is a thorough and fair process.

To be successful, the board of directors and the association manager must work together to avoid alienating the association's membership with rigid and unreasonable practices while upholding their obligation to protect and enhance property values for all the members of their community. This can be accomplished by utilizing a fair and consistent interpretation of the governing documents and recognizing that various shades of grey are sometimes very emotionally as well as aesthetically pleasing.

Source: Association Times