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Foundations of rulemaking authorityLesson 3 of 21

Academy/Rules & Rulemaking

What makes a rule enforceable?

Three tests separate a rule that holds up from one an owner can knock down in an afternoon.

A board-adopted rule is enforceable only if it clears three tests: the board had authority to make it (from the declaration, bylaws, or statute), the rule is reasonable rather than arbitrary, and the board applies it the same way to every owner. Miss any one of the three and an owner has grounds to challenge it.

01

The board needs real authority to make this particular rule

A board's power to make rules is delegated, not automatic. Getting elected does not by itself grant power to regulate anything the board can think of. The authority has to trace back to the declaration, the bylaws, or a state statute.

"[A]n 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, section 6.7, as quoted in Moretto v. Elk Point Country Club Homeowners Association, American Law Institute

This matters most for rules that reach onto an individual lot: paint colors, landscaping, what can sit in a driveway overnight. A rule restricting the structures, landscaping, or design of an individually owned lot needs a specific grant of authority in the declaration or a statute, not just the board's general sense that it ought to be able to regulate the community.

02

The rule has to be reasonable, not just approved

A rule the board adopts is not judged by the same standard as a restriction written into the declaration. The declaration carries a strong presumption of validity. A board-adopted rule has to clear an actual test: is it reasonable? Exactly how strictly courts apply that test varies by state; check how your own state's courts have treated challenges to board-adopted rules.

"[T]he 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

Owner approval does not settle the question by itself. In one case, owners approved a challenged rule by a two-to-one vote, and the court still went on to evaluate whether the rule itself was reasonable. A popular rule can still be an unreasonable one. And the conduct being regulated does not need to rise to the level of a legal nuisance before a board has grounds to address it; the bar for a rule is lower than the bar for a lawsuit.

03

It has to be applied the same way, every time

A rule that is reasonable on paper can still fail in practice if the board does not apply it consistently. Consistent application, documented reasons, and even-handed decisions are what make a rule defensible once it is challenged. See Consistent enforcement and Selective enforcement for what happens when a board enforces a rule against one owner but lets another slide.

Check yourself

Answer before you read the explanation, recalling it is what makes it stick.

The board adopts a rule banning any visible lawn ornament without checking the declaration first. An owner sues. What is the board's biggest problem?

Sixty percent of owners vote to approve a new rule banning pets over ten pounds. A challenged owner argues the rule is invalid anyway. Does the owner vote alone make the rule enforceable?

The board wants to start enforcing a fence-height rule it has ignored for years. What should it do first?

Sources

Related elsewhere in the Academy

Rules & Rulemaking

Next: see exactly how far a rule can go before "reasonable" turns into "arbitrary." Read Reasonableness.

Whether your state's courts apply this exact reasonableness test, and how closely they scrutinize a board's stated reasons, varies. Check your state's case law and the rulemaking authority actually granted in your own declaration and bylaws.