Ruling Out Diapers Could Really Stink for Your Association

Yesterday, Molly Foley-Healy wrote about community association rules and evaluating whether your association’s rules and restrictions fit your community. Making your rules and regulations fit your community is only one step in the process of reviewing and revising board-adopted rules and regulations. What if your rules are illegal?

One condominium association in Canada was recently ordered to pay a former owner $10,000 for prohibiting the owner’s young daughter from swimming in the association’s pool. The association’s rules prohibited any child under the age of 2 from using the pool. Even though the rule at issue may have fit the community, which apparently consists of many owners or residents over the age of 65, the rule violated the Canadian fair housing laws because it discriminated based on familial status. Similar fair housing laws apply to Colorado community associations.

The Canadian condominium association could have steered clear of its $10,000 penalty if its board had taken a few preventative steps before prohibiting two-year-olds from using the pool. To help avoid costly disputes over rules and enforcement actions, community associations should consider the following questions when revising rules:

Are the rules within the scope of matters that the board can regulate? The recorded covenants and applicable laws grant authority for promulgation of rules. But that authority does not extend indefinitely. For example, the board cannot create rules that conflict with the recorded covenants.

Do the rules clearly state the requirements for compliance? Poorly worded rules may not achieve the intended objective. Owners may not understand what the rule requires them to do or not do, and ambiguous rules may not hold up to a court’s scrutiny.

Did the owners have an opportunity to give their input prior to the board adopting the rules? Owner comments on draft rules can alert the board to issues to address in the drafting process. Allowing the owners to provide feedback and input may also create owner buy-in that promotes compliance.

Has the association’s attorney reviewed the rules prior to adoption? An attorney review can help avoid costly missteps resulting from illegal or poorly worded rules.

Once adopted, did all owners receive a copy of the revised rules? While some may cling to the old saying that ignorance of the law is no excuse, owners in community associations have a right to know the rules that apply to them. After adopting new rules, associations should give notice, as required by the association’s policy on the adoption and amendment of policies. In some cases, a delayed effective date for the rules may help owners come into compliance before enforcement action applies.

Reasonable rules that communicate clear expectations for residents can help foster harmonious living—which seems like a good fit for any community.

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