Changing existing rules
Amending or repealing a rule is not a lighter version of adopting one. Learn what stays the same, and what the change means for owners already living under the old rule.
Changing an existing rule is legally the same act as adopting a new one: the board needs the authority to regulate that topic, and the result has to be reasonable. Some states also require advance notice before the change, not just before the first adoption. Once changed, the new rule normally applies going forward. Enforcing it against only some owners, or against conduct that predates any warning, is what creates a selective enforcement problem.
Same rule, same test
A board sometimes treats changing a rule as a lighter lift than adopting one, since the authority to regulate the topic was presumably already established. It is not lighter. A board only has the power to regulate what it has been delegated, whether by the declaration, bylaws, or state statute, and every version of a rule it adopts is measured against a reasonableness test, not a rubber stamp. Tightening an existing rule into something arbitrary is just as exposed as adopting an arbitrary rule from scratch.
"...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 rule does not have to reach the level of a legal nuisance to justify regulation, which is a low bar for the board. But it does have to be reasonable, and that standard does not relax just because the rule already existed in an earlier form. For the deeper mechanics of that test, see Reasonableness and Board authority to adopt rules.
Check whether you owe owners notice first
Some states legally treat a change to a rule the same way they treat its first adoption: as an act that requires advance notice to owners before the board votes. California defines the term precisely.
"...the adoption, amendment, or repeal of an operating rule by the board."
Source: California Civil Code Section 4340, State of California
California requires at least 28 days' notice of the proposed change before the board acts, and a chance for owners to comment first. Connecticut requires 10 days under a similarly structured statute. Whether your own state imposes any notice requirement at all, and for how long, is not something a general answer can safely give you: check your state's association statute. A separate lesson, Owner notice and comment, walks through what a compliant notice actually has to say.
What the change means for people already there
Changing a rule does not erase what happened under the old one. If the board tightens a restriction, or starts enforcing something it had let slide, the safest path is to apply the change only going forward, after clear written notice to every owner, not just the ones the board happens to notice first. A Florida court upheld exactly that approach.
"...a uniform policy of enforcing a restriction only prospectively, after written notice that past violations will be tolerated but future ones will not."
Source: Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
What the board cannot do is skip the notice and single out a few owners for the new standard while others in identical situations are left alone. That pattern is what turns a legitimate rule change into a selective enforcement problem, and it can cost the board the ability to enforce the rule at all against the owner it singled out.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
A board tightens the guest parking rule to one vehicle per unit. Three owners have parked two vehicles for over a year with no complaint. The board starts fining only those three, with no notice to anyone else. What is the exposure?
A California association's board wants to amend an existing operating rule. What does the statute require before the board can act?
How many board votes does it take to formally amend an existing rule?
Sources
- Hidden Harbour Estates, Inc. v. Norman, Florida District Court of Appeal
- Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
- California Civil Code Section 4360, State of California
- California Civil Code Section 4340, State of California
- Connecticut General Statutes Section 47 261b, State of Connecticut
Rules & Rulemaking
Want to see how a rule gets adopted for the first time, before it is ever changed? Continue to Rule adoption procedures.
Whether your state requires notice and a comment period before a rule change, how many days that notice must run, and what vote your board needs to amend or repeal a rule all vary by state and by your own bylaws and declaration.