Condo Media - February 2011 - 34

COVER STORY

The Best Rules Are Clear, Specific, Simple and Limited
How many rules do community associations need? Probably fewer than many have in place. “You don’t need 40 pages of rules,” Brady insists. “Too many rules are just confusing,” not to mention off-putting for residents. Boards should use periodic reviews as an opportunity to prune their rules as well as to update them. That means both eliminating unnecessary rules and rewriting others, to clarify them and make sure they accomplish their intended purpose. A few general suggestions: 1. Ask four key questions about the association rules, when you adopt them and when you review them: • Are they fair? • Are they enforceable? • Are they consistent with the association’s governing documents and with applicable local, state and federal laws and regulations? • Do they target the problem you are trying to solve? If you can’t remember why the rule was enacted, it’s time to get rid of it. 2. Adopt the least intrusive and least restrictive measures needed to solve an identified problem. Don’t use a bazooka if a fly swatter will do. 3. State the rules clearly, simply and with only as much detail as the situation requires. A rule prohibiting “nuisances” shouldn’t list every nuisance covered, Brady says, “because if you omit one, you could have an enforcement problem.” 4. Strike a reasonable balance between the needs and concerns of the community and the needs and rights of its residents. In general terms, association attorneys suggest, if no one else can see, hear or smell something, you probably don’t need to ban or restrict it. 5. Make sure residents understand the rules and the reasons for them; solicit their input before adopting new rules, revising or eliminating existing ones; remind them periodically of important rules and why it is important to comply with them.

that the association will almost certainly lose. Rules must be worded carefully and neutrally, Brady emphasizes, to avoid targeting a protected class. Instead of saying children may not ride bikes or skateboard in the parking lot, he suggests, a rule should state: “Bike riding and skateboarding are prohibited.” And instead of saying, “owners may not store baby carriages, strollers and bicycles in the hallways,” a rule should say, “owners may not leave any personal property in the hallways.”

Beware of Children
Allegations that association rules discriminate against families with children probably top the list of Fair Housing Act complaints leveled at condominium communities today. And careful wording of the rules isn’t always enough to prevent those charges. A recent Massachusetts suit involving Stonecleave Village Association Inc., a Methuen community association, illustrates the point. The association’s rules didn’t single out children; they simply prohibited “organized sports activities, picnicking or fires, except in areas approved by the board.” When some residents complained about children playing wiffle ball and tag in common areas near their dwellings, the board notified the parents that their children could not play in the common areas, where the noise disturbed others, but could play in a field behind the complex, which the board had designated as appropriate for recreational activity. Some of the families complained to the Massachusetts Commission Against Discrimination, but the agency dismissed their complaint, finding no evidence that the association’s rules discriminated against children. The families then complained to the Department of Housing and Urban Development (HUD), the agency responsible for enforcing the Fair Housing Act. HUD found a cause of action and referred the case to the Justice Department, which filed suit

against the board and association. The association recently settled the suit without going to trial, agreeing to pay $130,000 to the families and $20,000 in civil penalties to the government. “This was a settlement, not a court decision,” emphasizes Shapiro, whose firm was not involved in this litigation. “There was no finding by a judge or a jury that the association was guilty of discrimination,” she explains, and settling a case, she adds, is not an admission of guilt. “People settle out of court for any number of reasons,” she notes, primary among them, a desire to avoid litigation costs and concern about the corrosive effects litigation can have on the atmosphere in a residential community.

A Murky Message
But absent a court ruling, Brady notes, “a case like this just leaves us scratching our heads,” because it isn’t clear what this association did or didn’t do that other communities should do or avoid doing. The press release announcing the settlement indicates that the problem HUD and the Department of Justice (DOJ) found was not with the association’s rules (which appear to have been written generically, as attorneys advise) but with the way in which they were enforced. The DOJ’s complaint alleged that the board fined families with children more than $500 for playing in prohibited areas, while levying fines of $10 on other residents for similar violations. The complaint also accused the board of retaliating against one of the complaining parents by charging her $1,000 to cover the costs the association incurred in defending itself against the MCAD complaint. “There is no excuse for violating our nation’s fair housing laws and imposing fees on families with children,” stated Thomas Perez, assistant attorney general in the DOJ’s Civil Rights Division. While the Stonecleave suit did not establish a precedent or even produce a court ruling, it may nonetheless have “far-ranging implications,” Shapiro says,

CONDO MEDIA • FEBRUARY 2011

Condo Media - February 2011

Table of Contents for the Digital Edition of Condo Media - February 2011