Does Your Board Define the Problem Before Passing Rules?
Jan. 10, 2014 — Einstein is quoted as having said that if he had one hour to save the world he would spend fifty-five minutes defining the problem and only five minutes finding the solution. Co-op and condo board and homeowner-association counsel often do not hear of the existence of a new rule until we are being asked how to enforce it. In response, good counsel will ask for a history on the rule and how it came into existence. My first question is usually, "What was the problem that required you to pass this rule?"
Sometimes the problem is clear and the rule is well-drafted to cure that particular problem. A recent example includes a client in with numerous bear sightings in the neighborhood. [Editor's note: Deer and raccoons, possibly bearing deer ticks and rabies, can pose similar problems.] The board enlisted the help of the local conservation commission and even reached out to a local legislator when the commission was unable to remove the bear. Some neighbors unwisely spoke of taking matters into their own hands, including possibly hunting the bear — which requires licenses, permits and is best off done in a wilder setting than a residential community.
Trash Talk
Ultimately, what was recommended was to have neighbors stop putting their garbage out the night before trash pickup since the odor was attracting the bear. Once the bear realized that its nocturnal foraging was not turning up food, he or she presumably would find more fertile hunting grounds.
In this case, the problem was clearly defined: A big bear roaming around a community could mean death or injury to residents or pets. The rule was not overly broad or ineffective: Take away the attractant and you reduce the appeal to the bear. The rule was passed, and the homeowners, understanding the need for the rule, are complying.
However, some condominium associations and co-op boards engage in the reverse of the Einstein formula. They may spend five or fewer minutes defining a problem in their rush to spend fifty-five minutes drafting rules and regulations.
Take These Steps
If you have a legitimate problem that your board has defined, and if you have considered it from different perspectives and weighed various consequences of passing and not passing a rule addressing it and if you have rule-making authority in your governing documents, then by all means adopt a rule. Your members will understand and for those who do not, your chances for withstanding an enforcement challenge are good.
However, if there is no current problem and no real potential for a problem you must ask yourself why you are passing this rule in the first place.
Donna DiMaggio Berger is a founding partner with the law firm Katzman Garfinkel & Berger. A blogger on homeowner association legal issues for such newspapers as the South Florida Sun-Sentinel, she serves as executive director of her firm's Community Advocacy Network. This article is adapted from a post at her blog, Condo and HOA Law.
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