Rules - Responsible Governance

As we approach the end of 2005, we reflect a little on this past year's developments, not the least of which was passage of S.B 100. When the year started, and the bill was introduced, many in the common interest community industry assessed the bill and wondered why our legislators felt it was necessary. As it wended its way through both State houses, and ultimately to the Governor's desk, it gained momentum, seemingly in stark opposition to what many outside of the State houses believed was necessary for mandatory governance of a common interest community. However, there seems to be significant concern with how community associations operate from those outside the industry to cause its passage. Here is an example of why.

In our experience, most associations take a reasoned approach to the adoption of rules and enforcement of their governing documents. When it comes to the enforcement of rules, courts will generally enforce the rule as long as the board had authority to adopt it (for example, it is not contrary to an express provision of the declaration), it is reasonable, and it is no broader in scope than necessary to address the harm intended to be corrected.

Reasonableness is rarely a black and white interpretation. However, sometimes, it seems that a rule is so unreasonable that everyone is left wondering "What was the board thinking?" Unfortunately, those are the situations that grab media attention, and the attention of state legislators. Certainly that seems to be the catalyst for S.B. 100, and what is most certainly more legislation to come. So, the moral of this story is "BE REASONABLE". If you are uncertain whether the board that you sit on is being reasonable, gauge the pulse of the community; ask for owner input; solicit advice. If the members of the board are the only people supporting the rule, chances are that the rule is not reasonable, and may not be enforceable.

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