Q I am a member of a small condominium association board of directors, and the board is somewhat reluctant to enforce its own rules, claiming they are too strict and inflexible. Could you tell me to what extent the board is responsible for the implementation of its master deed and bylaws? We have had many conflicting opinions, and are puzzled as to what course to pursue.
A I, too, am puzzled. I do not understand why you have been receiving conflicting opinions on a subject that, in my opinion, should be "crystal clear."
Rules, regulations and condominium documents must be followed. The board of directors has a responsibility -- indeed a fiduciary duty -- to enforce the various rules and regulations within the condominium association. As a member of the board of directors, you were elected by the membership and given the responsibility of running your condominium association. In this capacity, you must follow the various procedures. You should be cautioned that, if you do not follow those procedures and if you do not enforce the rules and regulations, other unit owners can take legal action requiring you and the other members of the board to live up to those responsibilities.
I fully recognize that there are many rules, regulations and bylaw requirements that may be too strict and may not permit flexibility. However, in my opinion, the procedure should not be to ignore them; if the board is upset with those practices, you should try to change them.
There is an order of priority that you should follow. The highest level is your own state statute affecting condominium associations. This statute has been enacted by your legislative body and is the law of your jurisdiction.
The next priority is the declaration of your condominium. This was the initial document whereby the developer "declared" that your association is a condominium; in effect, the declaration creates your condominium. This document is recorded among the land records in the jurisdiction where your condominium is situated, and unless it is in direct conflict with the state statute, it must be followed carefully.
The next level of priority is the bylaws. Here, too, these spell out the general operating procedures by which you and the other members of your condominium association must live. Unless the bylaws conflict with the declaration or state statute, the bylaws also must be followed. As you perhaps know, to change the declaration or the bylaws generally requires the vote of a substantial majority of the members of your condominium. Often, as many as two-thirds of the members must give their assent to enact an amendment. And I can tell you from bitter experience, it is not easy to change those documents.
The lowest level of priority -- albeit still important -- are the rules and regulations promulgated by the board, pursuant to the condominium documents themselves. Here, subject to variations of state law, the board of directors has great latitude in making changes in these rules and regulations, and you should discuss this with your own counsel to determine whether the board has the authority -- and under what guidelines -- to make those changes.
Thus, if concern stems from the rules, the board can be flexible. However, if concern stems from items found in the condominium documents themselves, you will need to amend those documents if you do not want to enforce them.
A condominium is a minidemocracy. As with any other democracy, its rules and regulations must be enforced, or chaos will ensue.
Indeed, the case law affecting condominiums is quite clear throughout the country. A board of directors may not enforce the rules and regulations selectively or arbitrarily. If, for example, the board goes after one unit owner who has an illegal pet, the board must go after all such unit owners. Otherwise, that one unit owner who is feeling the brunt of the board's enforcement will be able to go to court and have that enforcement set aside.
Perhaps this is a good time to carefully review your entire set of condominium documents. I often have suggested that, to create the flexibility needed in a condominium association, the basic condominium documents (the declaration and bylaws) should not be too specific, leaving any of the operating details to be included in the rules and regulations themselves. This way, if the board believes that certain provisions of its rules should not be enforced, it will have the flexibility to amend those rules. But at the present time, you have a responsibility and a duty to be responsive to those who elected you by enforcing the rules, regulations and documents of your condominium association.