Condo boards often inherit rules that have sat untouched for years, whether because previous boards chose not to enforce them or because circumstances simply never brought them to the forefront. When a board decides to revisit those rules, questions often arise about whether they can still be enforced. Here is what you should know.
Yes, boards may be able to enforce existing rules
A condo board may be able to enforce an existing rule even if previous boards rarely or never enforced it. In many cases, the rule remains part of the governing documents until the board amends or removes it through the appropriate process. The mere passage of time does not necessarily eliminate a board’s authority to rely on a rule that remains in effect especially if the corporate documents such as the by-laws or the proprietary lease contains a no-waiver clause. However, the failure to enforce a rule may be an indication to a court that violation of that rule should not be considered a substantial violation of the documents.
Consistent enforcement matters
Consistent enforcement becomes especially important when a board decides to revisit a rule it has not regularly enforced. If you begin enforcing a restriction against some owners while overlooking similar conduct by others, you may create confusion and invite disputes about fairness, discrimination or disparate treatment of owners. For that reason, boards often benefit from establishing a clear approach and applying it uniformly once they decide to move with enforcement.
Clear communication can ease the transition
Clear communication can help reduce misunderstandings when a board starts enforcing a rule that residents have grown accustomed to ignoring. Although governing documents may not require advance notice that a rule will again be enforced, providing notice of renewed enforcement can help residents understand what the board expects and when those expectations will take effect. Taking that step may encourage cooperation and help prevent avoidable conflicts within the community. A good example of this may be where a board has not strictly enforced the carpeting requirement but, based upon increased complaints of noise, decides it should be enforced.
Before enforcing an old rule
Just because a rule has gone unenforced for years does not necessarily mean it’s no longer valid. If you are considering enforcing it, reviewing your governing documents and seeking legal guidance can help you avoid missteps. A little preparation now can save a great deal of frustration and litigation later.