Rules And Regulations--
A Legal Perspective On Enforcement*

Fall, 2002 by: Shelley R.Z. Barnett

Enforcement of rules and regulations involves more than just someone spotting a violation, someone issuing a notice of a fine and an association sitting back and collecting the fine.

Rules/regulations are adopted, generally, to define acceptable and unacceptable appearance and conduct, leading to uniformity and standards of expectations within a common interest community.

REMEMBER:

board is charged with enforcement of legal, duly-adopted rules and regulations

board must exercise reasonable business judgment, acting in a fiduciary capacity

EXAMPLES:

a. dog 1 pound overweight in suburban setting

b. satellite dish on roof of apartment-style condominium

c. 150 pound dog in elevator downtown building that allows dogs no larger than 15 pounds

d. speeding on streets as children return from school

e. resident parking for 30 minutes in guest parking

f. cursing, assaulting neighbors, smearing feces on walls, piling garbage and bodily wastes in unit

PRIMARY TYPES OF REMEDIES SOUGHT:

1. fines

examples: garbage cans left out, landscaping, carpet on patios, operating a business in the unit

2. injunctive relief

examples¹: construction of a fence, keeping a pet, operating a business in the unit

3. forced sale

situation: owner who consistently violates rules, refuses to pay assessments, threatens other owners/board/management, requires frequent police presence, maintains unit in such inappropriate conditions as to threaten own and others' health, safety and welfare

4. lien foreclosure resulting in forced sale

situation: fines and other amounts due mount

SOME CONSIDERATIONS:

1. WAS RULE/REGULATION LEGALLY ADOPTED? [condo: full text circulated 30 days in advance of UO meeting for discussion, then board adopts at board meeting]

2. bad precedents from non-enforcement (court view versus language of documents)

3. reasonability of rule

4. procedural safeguards for owners

5. need for court intervention (timing/immediacy)

6. step processes, e.g., fines as an effort to cause modified conduct, prior to seeking injunctive relief

7. expense of enforcement; possibility of recovering fees/costs²

8. DEFENSES-estoppel, waiver, laches, unclean hands-LACK OF PRIOR ENFORCEMENT

* © 2002 Barnett and Goldberg, Ltd. All rights reserved. Do not reproduce without written permission of the author.

¹Examples assume that conduct at issue is not permitted or is regulated under association governing documents.

²Section 9.2 of the Condominium Property Act states: "(b) Any attorneys' fees incurred by the Association arising out of a default by any unit owner, his tenant, invitee or guest in the performance of any of the provisions of the condominium instruments, rules and regulations or any applicable statute or ordinance shall be added to, and deemed a part of, his respective share of the common expense." Most declarations similarly provide.