Rules & Rulemaking

Where a board's rulemaking power comes from

A board's authority to make rules is delegated, not automatic. It comes from the specific powers granted by the declaration, the bylaws, and applicable state statute, in that order of weight. Before adopting a rule, a board should be able to point to the exact document or statute that lets it regulate whatever it is regulating. This matters most for anything touching an individually owned lot: restrictions on structures, landscaping, paint colors, or materials on a homeowner's own property need a specific grant of authority, not a general sense that the board is in charge.

Ranked from most to least resistant to challenge:

1. Legal mandates that override board discretion entirely, such as the Fair Housing Act's reasonable accommodation requirement.
2. The recorded declaration (CC&Rs), enforced as an equitable servitude with a strong presumption of validity.
3. State statute governing the association, which sets a floor and cannot be contracted around downward.
4. Bylaws and articles, which govern how the association itself operates and grant its rulemaking power.
5. Rules and regulations adopted by the board, valid only if within its delegated authority and reasonable.
6. Discretionary board action within a rule, such as a waiver or variance, valid only if applied consistently.

This course is mostly about the bottom two levels: the rules a board adopts and the discretion it exercises enforcing them, which carry the least legal protection of anything on this list.

"an association enjoys an implied power to make rules in furtherance of its power over the common property" but "has no inherent power to regulate use of the individually owned properties in the community."

Source: Restatement (Third) of Property: Servitudes, American Law Institute

A board-adopted rule is judged more strictly than the declaration

Conflating a board rule with something in the CC&Rs is one of the most common mistakes a new board makes. The declaration is a recorded restriction with a strong presumption of validity, defeated only if it violates public policy, bears no rational relationship to the property, or imposes burdens wildly disproportionate to its benefit. A rule the board adopts on its own gets no such presumption. Courts apply a reasonableness test built specifically to limit board discretion, and a lopsided owner vote approving a rule does not by itself make an unreasonable rule reasonable. Exactly how strictly a given state's courts apply this distinction varies, check your state's case law and statute.

"the rule of reasonableness" is "the touchstone by which the validity of a condominium association's actions should be measured," and an association "is not at liberty to adopt arbitrary or capricious rules bearing no relationship to the health, happiness and enjoyment of life of the various unit owners."

Source: Hidden Harbour Estates, Inc. v. Norman, Florida District Court of Appeal

The bar is lower than most boards assume. A rule does not have to stop conduct that a court would call a legal nuisance to be validly adopted, it only has to bear a rational relationship to the community's health, happiness, and enjoyment.

Enforcement is where most rules actually fail

A perfectly valid rule can still become unenforceable, not because of how it was written, but because of how it was enforced. Tolerate a violation for one owner while enforcing the same restriction against another, and a court can refuse to enforce it at all against the owner singled out. Florida's high court took exactly this position after an association tolerated children in other units while trying to enforce a no-children restriction against one family.

"tolerating children residing in other units"

Source: White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida

A board that has let a restriction slide is not stuck that way forever. It can revive enforcement going forward, if it gives every owner clear written notice first that past violations will be left alone but future ones will not. What it cannot do is enforce suddenly against one owner while continuing to ignore identical violations by others.

Two related but distinct defenses live in this same territory. Waiver is the intentional or inferred relinquishment of a known right to enforce. Estoppel is an owner's reasonable, detrimental reliance on a representation the association made. Neither turns on a single missed enforcement action, both require a pattern of conduct or a specific representation the owner relied on.