Rule-review programs
What a periodic rule review actually checks, and the one state that requires one.
A rule-review program is the board's practice of periodically revisiting every rule in force to confirm it is still authorized, still reasonable, and still enforced the way it reads. Most states do not require this by law, though Colorado does. Doing it anyway protects a board from rules that have drifted out of step with the declaration, the bylaws, or current state law.
What a rule review program is
A rule review is the board setting aside time, on its own schedule, to look back across every rule currently in force and ask whether each one is still authorized, still reasonable, and still being enforced the way it reads. That is different from adopting one new rule or resolving a single owner's complaint; it is a sweep across the whole rule book. Most associations never do this until a lawsuit, a new board, or an angry owner forces the question.
Why review even without a state mandate
A rule adopted five years ago by a different board is not automatically protected just because nobody has challenged it yet. If it is ever tested, a court applies the same reasonableness test to it that would apply to a rule adopted yesterday, asking whether it still bears a rational relationship to the community it governs. Whether a rule has drifted out of step with your current declaration or state law is something only a review, not the passage of time, can tell you.
An unreviewed, unevenly enforced rule is also a liability. Courts have refused to enforce restrictions applied selectively against one owner while others got a pass (see Selective enforcement), and reviving enforcement of a rule the board let slide requires clear written notice before going forward, not a quiet, one-sided decision that the rule no longer matters.
The one state that requires it
Colorado is, so far as the research behind this Course shows, the only state with a statute that requires this directly. Its Common Interest Ownership Act requires associations to adopt "responsible governance policies," which state guidance describes as including a periodic look back at the rules themselves.
"Providing for the periodic review of the association's conflict of interest policies, procedures, and rules and regulations."
Source: Colorado Division of Real Estate, HOA Frequently Asked Questions, Colorado Department of Regulatory Agencies
If your association isn't in Colorado, no comparable statute was confirmed for this Course. Check your own state statute and governing documents before assuming either way.
What to look for in a review
Three checkpoints, applied to each rule on the books:
- Authority. Does the declaration, bylaws, or state statute actually give the board power to regulate what this rule covers? A board has no inherent power over individually owned property, only what it has been delegated.
- Consistency. Has this rule actually been enforced against everyone it applies to, or only against some owners?
- Fit. Does it still match the current declaration, bylaws, and any state statute, or has one of those changed underneath it?
A rule that fails any of these should go through your association's own procedure for changing or repealing a rule, not be quietly ignored.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
A board in a state whose statute never mentions rule review skips revisiting its rules for a decade. Is that illegal?
Which state's statute requires associations to adopt governance policies that include periodic review of their rules?
A board reviewing its rules finds one nobody has enforced in years and now feels outdated. What should it do?
Sources
- Colorado Division of Real Estate, HOA Frequently Asked Questions, Colorado Department of Regulatory Agencies
- Restatement (Third) of Property: Servitudes, sections 6.7 and 6.9, as quoted in Moretto v. Elk Point Country Club Homeowners Association, American Law Institute
- Nahrstedt v. Lakeside Village Condominium Assn., Supreme Court of California
- Hidden Harbour Estates, Inc. v. Basso, Florida District Court of Appeal
- White Egret Condominium, Inc. v. Franklin, Supreme Court of Florida
- Chattel Shipping & Investment, Inc. v. Brickell Place Condominium Assn., Florida District Court of Appeal
Rules & Rulemaking
Wondering what to do with a rule nobody's enforced in years? Read Rules that have become obsolete next.
Whether your state legally requires periodic rule review, and how often, varies. Colorado requires it by statute; most other states leave the timing and process to your own governing documents.