Adopting Rules

Accell Property Management, Inc. Board Member Orientation Handbook

GUIDELINES FOR RULE ADOPTION
By Steve Feistel, PCAM

The adoption of Association rules is one of the most important actions taken by the Association Board of Directors for the benefit and general welfare of the membership. However, the adoption of a rule should be one of the last solutions considered and preceded with an objective evaluation of the problem and alternative solutions.

The following steps should be taken when drafting and adopting rules:

IDENTIFY THE PROBLEM:

The specific origin and nature of the problem that the Association is attempting to resolve must be identified. If necessary, the Board may elect to appoint a committee or individual to investigate, research and identify the underlying problem.

EVALUATE ALTERNATIVES:

A rule may not be the appropriate method to solve the problem. It may be that the source of the problem is a personality conflict, a correctable design defect in the community, a failure to communicate adequately or even something over which the association has no control. If an alternative solution is identified, evaluate its effectiveness in resolving the problem.

RESEARCH EXISTING RULES:

There may already be a rule treating the problem, which may be satisfactory but poorly enforced, or a minor amendment to an existing rule may do the job.

RESEARCH THE LEGAL BASIS:

Research the enabling laws and the Association governing documents to determine the Board’s rule-making authority specific to the situation. In order for the rule to be enforced and effective, it must be based not only on the Board's general authority to pass rules but also on a specific function assigned or delegated to the Board by the governing documents. Making reference to this function will assist the Board in justifying the rule.

SEEK ASSISTANCE:

If the problem or rule is of a controversial, sensitive or complicated nature, it may be necessary to consult the Association’s attorney to confirm the Board’s authority, the wording of the rule and its enforceability.

DRAFT THE MOTION OR RESOLUTION:

In writing the motion or resolution, describe (a) the legal foundation for the Board’s or the Association’s authority to act, (b) the problem the rule is attempting to resolve, (c) the intent of the Board of Directors in adopting the rule and (d) the specific language of the proposed rule, including sanctions for failure to obey the rule.

APPLY THE REASONABLENESS TEST:

There should be some rational relationship of the rule to the safety and enjoyment of the community.

The rule must not be arbitrary or capricious.

Ask yourself if the rule is discriminatory or evenhanded.

Finally, the rule must be made in good faith for the common welfare of the owners and residents of the community.

PUBLISH THE PROPOSED RULE:

Circulate the proposal to the members and offer them the opportunity to comment. This may be done through the Association’s newsletter, a direct mailing or at an open forum. The purpose of offering the members an opportunity to comment is not to solicit a vote on the proposed rule but to solicit comments, objections, alternatives and supporting arguments for the passage or rejection by the Board of Directors. A membership vote on the proposed rule is not necessary, but should an advisory vote be taken, the Board must still exercise its independent judgment.

ACT:

Adopt or reject the proposed rule, with the Minutes or resolution reciting the steps that were taken in the process of developing the rule.

PUBLISH YOUR NEW RULE:

After the adoption of a new rule by the Board of Directors, the rule should be provided to all members and residents along with the date the rule takes effect. Unless there is an emergency, the effective date should be an easy date to remember, such as the first day of the month following publication. Make sure there is ample time for any necessary adjustments by members and residents. To maximize awareness and compliance, the rule should promptly be delivered to each owner and resident in a format that can be easily kept with the other documents and materials they received when they first moved in.

Good Luck!

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