It’s a time-worn pattern that plays out in workplaces, classrooms, and residential buildings everywhere: rules are set, and enforced strictly for awhile. Over time however, enforcement wanes a little—the rules are bent, then broken. Eventually they’re being routinely ignored, and at that point, it may be time to take action to get things back on track.
House Rules, a Brief Intro
House rules are not necessarily as old as the building they help govern, but they are as old as the cooperative or condominium association. When co-ops convert to condos or when condos are established from the get-go, the writing of house rules is part of the process along with the bylaws and other governing documents.
According to Stephen Kotzas, an attorney with Berry, Sahradnik, Kotzas, Riordan & Benson in Toms River, the bylaws and the master deed “will give the trustees to power to create rules and enforce them.”
“House rules are created by the board of directors,” expounds David L. Berkey, a partner with New York-based law firm Gallet Dreyer & Berkey, LLP. “And the board of directors—or board of managers in a condo—has the authority to modify them.” Most house rules are pretty cut-and-dried: No loud noise after such-and-such an hour, no children playing in the hallways, no ball playing outside, no bicycles in the hallway, all guests must sign in, and so forth.”
Above all else however, rules should be reasonable. “The board should not try to over-reach or micro-manage with house rules,” says Kotzas.
The Good, The Bad
“House rules are designed to deal with quality-of-life issues—to promote the health, safety, and welfare of the residents,” says Berkey. “Any rule that accomplishes that task is a good rule.”
“A good rule is specific, detailed, and lays out exactly what can be done and what can’t,” says Michael Kenyon, president of RSL Management, Inc. in Hillsborough. “For example, satellite dishes have to be in the back, not on the roof.” The specificity makes it work. A resident who rigs a satellite dish to the roof—no matter how eloquently they may argue about what exactly constitutes a “roof”—is in obvious violation of the rule. This makes it easy to enforce, because the only shade of gray is the color of the offending dish. If a house rule is too general, it could lead to legal issues, either in arbitration or in court. And whenever lawyers get involved, needless to say, the price increases dramatically.
Noise rules tend to be vague, and therefore harder to enforce. People have different ideas of what loud means, alas.
A bad rule is “one that makes more work for the manager,” Kenyon says with a laugh. He’s joking, but he’s absolutely right. Specificity is key to house rules. If a property manager spends too much time getting into arguments about what is a violation and what is not, odds are you are dealing with an unclear, and for lack of a better word—bad rule.
“The house rules are not supposed to be a place where the board goes to raise revenue,” says Berkey. “A rule that deals with financial obligations—that’s not intended to be a house rule.”
Other bad rules are “too general,” says Kenyon. “Or it doesn’t have any teeth to it.” For example, a house rule prohibiting solicitation might be too vague. Most residents probably don’t mind a rule prohibiting door-to-door paintbrush salesmen. But is plastering political campaign stickers on your apartment door solicitation? Some might say yes, some might say no. Point is, clearly it’s unclear.
“Democrat, Republican, it doesn’t matter,” says Kenyon. “If it’s not specific, it’s not a good rule.”
The Unenforceable Rule
Sometimes, there may be a house rule that is never enforced. Plants on the fire escapes, for example. Fire safety codes prohibit any clutter on the fire escapes, but that doesn’t stop apartment dwellers from cultivating a topiary outside their window.
Because house rules can be modified by a simple majority of the board, there tends to be more leeway with both their codification and their enforcement. Four dog lovers might adopt a different attitude to a no-pets house rule than someone who doesn’t care for animals.
“A lot of it depends on the board,” says Kenyon. “With some boards, it’s the letter of the law. Other boards are more lenient.”
A New Sheriff in Town
So, what happens if a building or HOA decides to do the equivalent of a sports team replacing a cushy “player’s coach” with a surly disciplinarian? How can a new board re-assert control of the association effectively, without chafing the owners?
An incumbent board usually doesn’t suddenly change the way it enforces rules, but when a new board comes in with the goal of being more disciplinarian, they need to let unit owners and shareholders know.
“The board has to make sure everybody is on the notice that the rules are going to be enforced,” says Kotzas. “Either through letters or in a newsletter—however they communicate with the members,” and boards need to make it clear they’re going to be enforcing house rules. Enforcement should be gradual. “Don’t just fine people and go to court when [rules] haven’t been enforced previously.” If the enforcement policy on certain rules has gotten lax, and a board suddenly tries to enforce a rule “that hasn’t been enforced for five or 10 years, the homeowner has a good argument that the rule is no longer enforceable,” he says.
For example, a condo may have a policy prohibiting wind chimes outside, Kenyon says. The outgoing board might have ignored the rule. The new board may turn out to be anti-chime sticklers. “We have to put notice out there because you have a precedent set,” he explains. “‘Effective February 1st, we are now going to follow all house rules and bylaws to the letter.’” This way, the residents are not surprised when they get fined for not taking down their wind chimes. Communication is vital here, because nothing is more frustrating than arbitrary enforcement of a rule.
If a rule is broken, “The board should generally put the unit owner on notice that there is a rule violation,” Kotzas says. “Then you give them an opportunity to be heard at an alternate dispute resolution proceeding— and if that doesn’t work, then you can go to court and seek injunctive relief and attorneys’ fees if necessary.”
Rules are often broken, but there is one tried and true method for getting people to adhere to house rules. “Fines,” says Kenyon. “That’s the only thing people understand. Unless you hit their pocketbook,” you probably are not going to see results in adherence to the rules.
You leave an old couch on the sidewalk in front of the building, you get fined a hundred bucks. Easy, right? Not necessarily.
“The board can use fines, provided the fines are provided for in the bylaws,” says Kotzas. “In order to assess fines, it has to be authorized, and the fines should be reasonable, they should not be excessive.”
With co-ops, fines can be even trickier, because some attorneys—and, more importantly, some judges—will not grant a co-op board the power to fine its shareholders. In some cases, the only weapon at a board’s disposal, explicitly stated in the law, is the nuclear option—termination of the proprietary lease and eviction.
The bleak economic picture has had an impact on house rules, as well. “The biggest challenge now is the number of people who can’t pay their maintenance fees,” Kenyon says. “Depending on the lawyer they have, the board can be lenient.”
A shareholder who has been laid off might request that the board waive late fees until after he finds another job, for example. This is not only the neighborly thing to do—and what is a co-op or condo but an association of neighbors?—but it also can be beneficial if the shareholder winds up not being able to pay.
“If you show compassion,” Kenyon says, “it looks better if you have to go to foreclosure.”
Any way you slice it, enforcing house rules and finding the right mix of what works for your community can be touch and go. And as in any situation, the best results come from being reasonable and clear.
Greg Olear is a freelance writer and a frequent contributor toThe New Jersey Cooperator.