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REEVALUATING THE SUBSTANCE, LENGTH AND WORDING OF THE RULES Even if an association’s rules and regulations are legally sound and competently drafted, an association should periodically reevaluate whether the rules reflect the evolving needs of the community and its homeowners. In revisiting its rules, an association’s board of directors should consider which rules truly remain useful and


and


which rules have become obsolete or otherwise do not legitimately contribute to the efficient and harmonious operation of the property. Boards should adopt and retain only those rules which the association is realistically willing and able to enforce. In other words, an association should consistently enforce those rules which continue to have value for the community and eliminate any rules which the board cannot or will not commit to applying in a uniform manner.


An unnecessarily extensive set of rules overregulating y


homeowner behavior can create a negative perception of an association. Using the rules to restate large portions of text copied from the declaration and bylaws is generally unnecessary and counterproductive to readability. Rules which are verbose, filled with unnecessary legalese, or convey an overall punitive tone may lead to unintended consequences, such as discouraging homeowners from reading and understanding the rules, or eliciting concerted pushback fromk


homeowners.


When reexamining an association’s rules and regulations, a board should attempt to objectively assess the overall perspectives and priorities of the homeowners. A board may wish to ask thatk


RULE ENFORCEMENT CONSIDERATIONS Without question, some associations will encounter situations where a homeowner clearly doesy


not respect


the rights of neighboring homeowners, and strong association rule enforcement actionwillbe appropriate. However, many rule violation issues can be resolved or at least de-escalated if a board employs reasonable business judgment and common sense in handling the violations. For example, associations in most cases can provide homeowners with warning letters before initiating violation hearing procedures or asking association legal counsel to become directly involved with the violations. Fine amounts must be reasonable 4


and consistent with any homeowners participate in a non-


binding informational survey regarding possible rule amendments. Boards can invite homeowners to serve on a committee or commission created for the purpose of evaluating the rules. Prior to adoption, rule amendments can bediscussed at a meeting where homeowners are given the opportunity to pose questions and voice concerns to the board.3


If a large number of homeowners disfavors


a particular rule and there is no clear need for the rule or significant countervailing homeowner support for the rule, the board should consider modifying or rescinding the rule. While condominium association boards and most common interest community association boards ultimately have the authority and responsibility to make final decisions regarding the adoption or amendment of rules, acknowledging homeowners as interested stakeholders and allowing them to participate in the rule development process can help a board achieve a significant degree of consensus within the community and minimize unexpected homeowner backlash in response to unpopular rules.


Relative to Illinois condominium associations, under Section 18.4(h) of the Illinois Condominium Property Act (“Condominium Act”), the purpose of rules and regulations is to cover “the details of the operation and use of the property.” Illinois common interest community associations must refer to their governing documents to identify the scope of a board’s rulemaking authority, including whether the board can only adopt rules regulating the use of common areas or whether the board also has the authority to adopt rules regulating the use and occupancy of individually-owned homes. 2


1


Illinois condominium associations must use the rulemaking procedures described in Section 18.4(h) of the Condominium Act. Non-condominium common interest community associations and master associations must follow the rulemaking procedures prescribed by their governing documents


40 | COMMON INTEREST® 3


fine schedule which has been adopted as part of the rules and regulations. Fine schedules should allow for boards to impose fines which are commensurate with the nature and frequency of the particular violations. Associations should consider having their rules affirmatively state that the board has the flexibility to refrain from imposing a fine in cases where one-time infractions have been promptly corrected by a homeowner. While granting homeowners outright variances or waivers under rules can expose an association to liability or compromise future rule enforcement action, a board can still exercise discretion in deciding how to handle the disposition of any given violation. For instance, a board can focus primarily upon securing agreed homeowner compliance with rules and reserve adversarial action for those situations where an association has exhausted its options for pursuing an amicableoutcome.


CONCLUSION When drafting rules and regulations, community association boards should take steps designed to ensure that the rules serve the current standards of af community. If particularf rules are objectionable to the community as a whole, a board should consider whetherr viable option. If duringf


r amending the rules is a the rulemaking and ruleenforcement


processes a board displays a meaningful commitment to seeking input from homeowners, reasonableness, common sense, and a continued awareness that the board members and the other homeownersr


are all neighbors, a


board can position itself tof maximize its credibility with the homeowners and its ability to achieve unity within the community.


With respect to Illinois condominium associations, Section 18.4(h) of the Condominium Act expressly requires that associations call a meeting of unit owners for the specific purpose of discussing proposed rules and regulations prior to board approval of the rules. Notice of the unit owners’ meeting must contain the full text of the proposed rules and be given to the unit owners not less than 10 and not more than 30 days prior to the meeting date. Unless the condominium instruments provide otherwise, no quorum of unit owners is required at the unit owners’ meeting. At a board meeting held sometime after the meeting of unit owners, the board votes on whether to adopt the rules. 4


Section 18.4(l) of the Condominium Act authorizes a condominium board to impose reasonable fines against a unit owner, so long as the association first provides the unit owner with notice and an opportunity for a violation hearing. Section 18.5(c)(7) of the Condominium Act requires that master associations follow the same procedure. Section 1-30(g) of the Illinois Common Interest Community Association Act provides that the same guidelines apply to associations subject to that statute.


• Fall 2020 • A Publication of CAI-Illinois Chapter


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