There have been some recent articles about Condo and homeowners association HOA Boards enforcing phantom rules. In other words, they restrict pets, guests, vehicles, and more. The restrictions sound reasonable. They are consistent in enforcing them, and the restrictions are within the Board’s rights. However, sometimes it is found that the long-standing restriction doesn’t really exist. How can that happen?
When association boards are elected, information is passed along orally to the new directors so they may not review all the governing documents in detail. Thus, the restriction may evolve to something that cannot be supported by the documents, statutes or law. As time goes by and Board members come and go, it is easy to not recognize that a rule or restriction isn’t enforceable.
At some point an owner may challenge an enforcement action and respond with the obvious: “show me where in the documents it says that.” It’s usually when the Board member cannot show the specific restriction in the governing documents that they become aware of the problem. This can result in legal fees as well as damaging the homeowner’s confidence in the HOA Board.
Each year as elections take place and new board members assume their duties, it is always worthwhile to review the Rules and Regulations to make sure they are compliant. This is an excellent time to also review the operating policies of the Board and make changes or update them as well. If there are gray areas where the Board is not sure of consistent enforcement, it’s a good idea to obtain the input from your legal counsel.
If changing of the officers is not a good time for review in your association, establish a different timeframe for an annual review of Rules and Regulations. A good review keeps everyone apprised of the rule, how the restriction will be implemented and avoids phantom rule enforcement.