When considering rules and regulations for their community, board members must decide what is necessary versus what could be burdensome for their building's residents. Times change, as do community mores, population demographics, and individual wants and needs. Rules and regulations that once made sense and reflected the morals and standards of their day can become antiquated, irrelevant, or just plain silly after many years.

Times don't simply change—sometimes they require us to change a bit too, and that may mean taking another look at a rule or discarding it altogether. One key to objectively analyzing your association's rulebook is to consider the view of those on the other side of the rule. Another key to using sound judgment in community rulemaking is getting the counsel of professionals for some of the trickier decisions.

The Importance of Consistency

While many of the documents governing New Jersey's HOA communities are essentially timeless, others are hopelessly archaic. For example, some communities still have rules on their books that date back to the days of the Temperance Movement, says Wendell Smith, a partner in Greenbaum, Rowe Smith & Davis, a law firm in Woodbridge, and one of the authors of New Jersey Condominium & Community Association Law. "One of the things you'll find on old deeds is restrictions against alcohol being used on the property," he says. And not just in the community room or around the swimming pool—anywhere.

And it doesn't stop with wine and spirits. Some still-active community rules active aren't just legally unenforceable—they simply don't make sense. Rules against hitching one's horse-and-buggy to the HOA's signage, or outlawing the use of chewing gum within the association's borders would fall under that heading.

More often than not, though, basic consistency is one of the things most lacking in a community's rules and regulations. One of the most common problems with a community's rules is that the rules don't all agree with each other, says John C. Roberts, owner of JCR Management Services in Point Pleasant.

"We often see that they're not uniform, especially when documents are drafted by attorneys with no knowledge of the [association's] existing rules," Roberts says, noting that once an ill-conceived provision gets ratified into the community's governing documents, it can be very hard to get rid of. "Like when board members are elected for life, without any term limits—unless they die, move or resign."

According to David Larkin, an assistant vice president and national director of community associations for homebuilder Toll Brothers, Inc., one factor that contributes heavily to the drafting of bad (or just not good) rules is the all-to-common practice of relying upon someone else's documents to create rules for an association. "The biggest hurdle that boards face is using cookie-cutter documents," says Larkin, who also is a lawyer. Using one HOA's governing documents as a template for another may save billable hours, but each community is different, and a one-size-fits-all approach to making rules for unique groups of residents can really backfire. Limiting children's access to a community room in a seniors-only building or development might make sense, but if that item finds its way into the rulebook for a community of young families, it just creates hassles—both in terms of enforceability and paperwork in order to change the rule.

The Acid Test

Sometimes the legality of a rule is just one aspect of the regulation that could warrant a second look. An attorney who is well-versed in condominium law will be able to ascertain whether a given rule passes the legal "smell-test"—that is, whether it stands a chance of holding up in court if challenged. Such an attorney can also guide community leaders toward creating rules that are feasible; logical, fair, and capable of being enforced.

It's also worth pointing out that those who expect to benefit from rules are often the ones who make them—and sometimes the intended benefit goes to the few, to the detriment of the majority of a community's residents. Essentially unworkable rules and regulations like these can create an impasse, driving a wedge between the residents of a community.

Roberts says that along with that issue are conflicts between full-time community residents versus those who are part-timers, such as sublettors or rental tenants. Because of their differences, such residents have varying ideas about what the community should be. Sometimes those divergent lifestyles conflict, and sometimes that conflict can end up in court. Creating or enforcing a rule should be considered in light of the possibility that it might end up in a potential legal action.

Another mistake that can be found in some condo regulations is a provision that requires an unreasonably large percentage of residents in the community—sometimes as many as 100 percent—to approve an amendment to a document. "I know of one place that still has that provision in their bylaws," Roberts says, and adds that such over-the-top provisions have resulted in inter-neighborhood arguments.

Achieving a quorum among residents is a difficult task, Roberts continues. Sometimes managers and board members need to "sweeten the deal" with incentives in order for them to attract enough residents for a vote. "Even in 50 to 100-unit complexes, we still have to offer a free prize just to get people to show up for a vote. At 51 percent, it's cheaper to spend a little extra on a door prize to achieve a quorum," he says, noting that even with prizes offered it can be difficult. "New Jersey's been trying to [enact] a standardized master deed for years, with no success."

The proposed master deed, if passed by the state legislature, would standardize documents for communities across the state. One provision in the proposed master deed would lower the number of voters needed for a quorum from 51 percent to 25 percent of the total residents. Of course, community members are free to change the rules of their communities whenever they deem necessary. They simply have to show up for the meetings—or at least a voting meeting—to do so. But in this fast-paced era, the average resident often can't find the time to attend his or her community meeting…at least until he or she finds out about something that really makes them mad.

A Bark Worse than Height?

Perhaps nothing raises a resident's ire more quickly and vociferously than the rules and regs concerning pets. When a community's pet rules are woefully outdated, or poorly conceived, they invite noncompliance. Rules regarding pets often deal with the size and weight of the pet, Larkin explains.

"The reality is you have communities with quiet big dogs and yelping small dogs," Larkin says. "We moved from regulating pets by size to regulating pets by behavior—the noise they make, and where they can go outside and do their business. The older documents all regulated the number of pets and the size of the pets, but not pet behavior."

Smith agrees, saying that rules concerning pets are some of the most common antiquated rules still used by some communities. "You might find something like, your dog can weigh no more than 20 pounds, or you can have no more than two dogs," Smith says. "Who's going to weigh the dogs?"

Another common issue that arises in regulations is the question of what constitutes a "commercial vehicle." Salesmen often drive sedans, and those vehicles are used for commercial purposes, so are they commercial vehicles?

"What is a commercial vehicle in today's world? Sometimes [the provision] will be tied to whether the vehicle is registered as a commercial vehicle," Smith says. "You should try to govern by size and type of vehicles, but even then it gets vague."

As with commercial vehicle rules, rules limiting the use of living spaces to "residential purposes" can also be problematic, because of the loose definition of the term.

"What is a residential purpose these days? Everybody telecommutes," Smith says, adding that the residential purposes provision is usually applied to home-based businesses that generate traffic, which is a big no-no in any association. "Realistically," he says, "you can work from home without creating any traffic."

Some community rules might be needlessly problematic, inasmuch as they are tough to enforce and will likely be disobeyed by some residents. And sometimes what seems like a problem to touchier residents or board members may be more of a minor inconvenience that is best left un-codified.

"Parking is an issue. How do you enforce parking rules?" Smith says. "And what if you find people parking illegally—do you tow them, or do you boot them? Maybe you can fine them, but I'm not aware that it works."

Perhaps the issue of enforceability is most strikingly illustrated by the issue of smoking in apartment units. Few would argue that smoking is a dangerous habit—but should condo or co-op boards be able to dictate whether or not residents can smoke in their own homes? Some have tried—and results have been mixed.

"No smoking in the building is a whole other trend," Smith says. "We've been involved in cases where smoke has become a nuisance to people."

Such a nuisance might be the result of a retiree who lives next door and constantly smokes cigars, stinking up the apartment next to his. Or the smell could emanate from something as seemingly innocuous as people preparing their daily meals, Smith notes. What smells delicious to one resident or family might seem noxious to another—but it's very hard (and possibly illegal) for a board to dictate what a unit owner can and cannot do within their own four walls.

Rules to Govern By

By enlisting the help of experienced legal counsel, and being involved with groups like the Community Associations Institute (CAI), boards and property managers can learn more about what constitutes a sound, enforceable rule. CAI provides educational and networking opportunities for community members who want to learn more about how to effectively manage their communities. Even HOAs that seem to be in ideal shape and running smoothly can benefit from at least some guidance from professionals who've been there before.

When an issue of rule-breaking arises in a community that he deals with, Roberts says he always asks the board members to put themselves in the position of the person violating the rule. "I'll ask them if they really think the rule is enforceable with everyone. A lot of times they'll look at the rule and say, 'You're right—it's not.'"

"If you're going to put in a rule, be prepared to enforce it," Smith advises. "If you don't enforce it consistently, you could lose in court."

Wherever there are rules and regulations, there's bound to be the occasional conflict—whether it's between neighbors, between residents and management, or between the board and the community members. With the right information however, HOAs can avoid the worst of these disputes. Board members and community leaders who take the time to consider what makes a good, enforceable rule, versus one that's impossible to enforce—or just plain ridiculous—will find fewer residents challenging or ignoring them, and may even see improvement in community spirit and morale.

Jonathan Barnes is a Pittsburgh freelancer who regularly contributes to The New Jersey Cooperator and other publications.