If there are common properties, owned, shared, and paid for by residents of a community (the very definition of a common interest community association), there should be rules for the equitable sharing of their uses. Without rules, the members of the community sharing ownership interest in the common elements can exercise their ownership interests without limit, and chaos would ensue.
 
CAI’S GAP REPORT #7, Drafting Association Rules, looks at the rules that association boards adopt, and offers guidelines for the development of those rules. This article is an excerpt from that GAP Report.
 
Rules should be written simply and comprehensively. The writer should avoid long lists, such as “no cattle, horses, pigs, chickens or other livestock, poultry, vermin or pets,” when a short inclusive term such as “no animals,” would suffice. Similarly, common words are more effective than multi-syllabic, Latin promulgations.
 
A common mistake of association directors and managers is to play lawyer. Naturally, rules should have a solid legal underpinning, derived from the documents. But it is difficult for the resident to understand what is meant, for example, by “Section 35.641 of the Code of the Chartered Municipality of Pleasant-ville is hereby incorporated by reference.” More importantly, the drafter should not fall into the trap of thinking that legal-sounding language possesses authority unto itself. Words like “heretofore,” “aforementioned,” “hereinafter,” or “pursuant to” do not add to the legality of a rule.
 
A GOOD RULE IS EASILY OBEYED
Of course, sometimes a rule will require a majority of people to substantially change their behavior, but in these rare cases, the need for the rule is usually evident and convincing, and the penalties for violations are severe. Most rules depend on voluntary compliance by the members. Neither the board nor the manager is in a position to play police officer. Peer pressure to conform to the norm and the good of the group without active sanction--one of the best enforcement tools available to the association--can work only when a large majority of members voluntarily follow a rule.
 
A GOOD RULE IS EFFICIENT 
It accomplishes exactly what its creators designed it to do--not too much, not too little. Many common sayings describe proposed rules that are inefficient. For example, these two metaphors with a mutual reference: “trying to kill an elephant with a fly swatter,” or “trying to kill a fly with a blunderbuss.”
 
Unfortunately, many associations that try to solve a problem by passing a rule usually adopt too harsh or too broad a rule. This sets off a familiar chain of reactions: members ignore the rule and call the board autocratic or dictatorial; the board complains that members are apathetic about the community and ungrateful for all the work the board does; other rules are ignored; the newsletter takes on a paternalistic and scolding tone; complaints to the manager snowball. 
 
RULES SHOULD BE ENFORCEABLE
Apart from the question of authority discussed earlier, enforceability also means specificity. Yet this advice is sometimes ignored by those who draft association rules. “Loud and boisterous activity should be avoided.” By whom? Where? When? What does “avoid” mean? It is difficult to understand why and when a mini bike is loud, but not a gasoline lawn mower; when a party at midnight on Saturday is boisterous, but not a wedding reception in the clubhouse on Sunday, or a backyard barbeque on a summer evening. Moreover, to know whether someone is avoiding something, you must probe their motivations and the available alternative choices. A resident who is hard of hearing is quite likely to play the television louder than the neighbors would appreciate, or a person in a hurry might instinctively shout, “Hold the elevator!”
 
Some trade-off is occasionally necessary to balance the goals of specificity, simplicity and ease of voluntary compliance. Every rule cannot always meet these goals.
 
To use the above example on noise, “loud” is a simple, but unspecific term. If the rule stated very specifically reads: “Between the hours of 10p.m. and 7a.m. no noise shall be permitted in a unit that measures 30 decibels or greater for more than 10 seconds in the nearest adjacent unit or public area,” few homeowners would know whether they are in compliance or violation of the rule. Such specifically stated rules may be easy to enforce in court, but difficult to obtain community-wide voluntary compliance. There are no easy choices; each association has to make its own decisions.
 
A GOOD RULE MUST BE COMMUNICATED
While few associations have “secret” rules, many associations do not ensure that the rules are widely known. Owners manuals, including the current rules, should be distributed when the first, and all subsequent purchasers move in, and should be revised, republished and distributed periodically.
 
If rules are numerous or extensive (more than one page), a subject index and table of contents would help. Absentee owners and renters should also receive copies of rules. Some associations distribute extra copies of rules so parents can give a set to their teenagers as well.
 
While taping the rules in elevators or next to the mail boxes catches people’s attention, the anonymity of this process can reduce its effectiveness. When printing and distributing copies of rules, associations should indicate that the rules were adopted by the board. Rules signed “The Management” may remind owners of impersonal rental experiences, and thus cause negative reactions. Some signage helps. For instance, signs are useful at swimming pools or other areas used functionally under association rules and can include extracts for the benefits of guests and occupants.
 
PRACTICE POINTERS
! Rules governing the day-to-day conduct of members of an association are subsidiary to, and take their authority from, the enabling statutes and organizing documents of the association. Rules cannot be enforced if they do not have that authority. They can only fall within the limits of those documents.

! Rules should be enacted or amended following the basic concepts of fundamental fairness and reasonableness in their development and application.

! The process of drafting rules requires: (1) identification of the problem, (2) determination of a need for a rule, (3) research of the enabling laws, association documents, existing association rules and previous association actions, and (4) preparation of the proposed rule including an introduction, the intent and back-up authority, and the text of the actual rule.
 
! Rules should be developed in an atmosphere of participation and communication including: (1) circulation of the proposal to owners with an opportunity for them to comment, (2) passage at an open meeting, (3) publication of the final rule before its effective date, and (4) regular periodic review and consolidation of accumulated amendments into a single publication.
 
! The compilation of association rules should have a table of contents and a subject index, and follow a reasonable order. Definitions of words and the use of terms should be consistent throughout the association documents and the rules.
 
! General guidance and helpful information that the association publishes should be clearly distinguished from rules that carry a sanction or punishment if violated by owners. Procedural directions, internal policy statements, employment terms, etc., are not rules. They should be published, but not in a published compilation of rules.

! Rules should be capable of compliance without undue change in lifestyle or deprivation of normal living requirements. Rules should be enacted only if they are necessary and they should regulate the fewest activities possible.
 
! Rules should be stated in positive terms. They should be easy to understand and should be short.

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Boot Camp Part 4:  Governing Your Association Lawfully & Effectively August 14