Check Your HOA or Condo Association Documents for Three Unenforceable Rules
With all the work it takes to run a community association, it's easy to overlook occasional changes in federal, state, or local laws. As a result, you may not make necessary changes to association rules to reflect these changes. This can create problems. You'll end up with rules on your book that are unenforceable because they contradict current laws. Even worse, if you try to enforce the rules, you could be violating the law.
Below we tell you about three rules we've seen frequently in governing documents, which create problems. The first two rules contradict federal law and are unenforceable. Check your association's documents to see if either rule is there and, if so, eliminate it from your documents. The third rule may or may not be enforceable, depending on your county or city zoning laws. If it's in your documents, check with your attorney to see if it's enforceable under the current laws of your governing entity.
Three Unenforceable Rules
Here are three rules to look out for.
Any rule that prohibits children under a specified age from swimming in the community pool.
Because children are vulnerable to pool accidents and so could be a source of liability for the association, you might be tempted to ban them from your pool. This is the wrong approach, warns Nadeen W. Green, senior counsel for For Rent Magazine. If you set a rule banning children under a certain age from using the pool, you could be accused of violating federal fair housing law by discriminating against families with children, and be ordered to pay damages. Instead of banning children under a certain age from using your pool, you should require them to be accompanied by and supervised by an adult, explains Green. "Industry standard is children aged 14 and under," she says.
Also, it's okay to have "kiddie" pools-that is, wading pools for infants and toddlers, Green says. But it's not okay for you to label some pools "adult" pools and others "family" pools, and then restrict children to family pools, she says. If you do, again, you could be accused of discrimination, especially if there are more adult pools in the community than there are family pools.
These rules may differ for senior communities. Because senior communities are specifically designed and run for people over the age of 55, federal law gives them more latitude in creating rules appropriate for their circumstances. But senior communities should be careful too, because even their members have the right to have guests, including children, at the pool, warns Green. So it's often better to focus your rules on noise and disruptive behavior than on age, she says.
Any rule that bans, or effectively bans, all satellite dishes.
Federal law makes any rule that bans, or effectively bans, the installation or use of satellite dishes are unenforceable, says Matthew Ames, a Washington, D.C. , attorney who specializes in telecommunications law. Specifically, for community associations, satellite dishes of one meter or less in diameter may not be prohibited in exclusive use areas, according to New Jersey attorney Ronald L. Perl. Nor may the association enforce rules that unreasonably hinder the reception of an acceptable quality signal.
The association also cannot enforce rules that make it too difficult or costly to have dish reception.
The problem is that it's not easy to know which association rules the FCC will approve of should a member file a complaint. The FCC will typically make its decision based on the details of each situation and whether the association has similar requirements for comparable objects such as window unit air conditioners as an example.
Any rule that bans members' business use of their units.
For years, community associations have wanted to preserve the residential nature of their communities, and therefore have banned all business use of the member's units. This might have made sense 20 years ago, but with the proliferation of telecommuters, Internet businesses, and home computers and fax machines, it no longer does.
A rule banning all business use is often unenforceable, especially if any other members are using their units in nonresidential ways and the association isn't stopping them. Even if there are no other members being allowed to conduct business at home, it will be hard to enforce a total ban. Since a total ban isn't necessary to protect the residential nature of your community, a court is likely to be as unimpressed by the logic behind the ruling as are your members.
Check with your attorney before attempting to modify your documents to accommodate business uses that do not negatively affect your communities.
Reproduced with permission from Community Association Management Insider, www.CommunityAssociationInsider.com, 2012 by Vendome Group, LLC
