Tips for Drafting Enforceable Rules, Design Guidelines and Other Documents

Boards will often draft rules and regulations, design guidelines and/or other supplemental governing documents if such power is expressly provided for in the association’s declaration or bylaws. This means the total governance for some communities may extend beyond what is filed in the land records. Unlike the recorded documents, however, board-enacted rules are easier to challenge, and therefore it is crucial to have them reviewed and crosschecked to ensure their enforceability. The following are some general tips for drafting (or amending) these supplemental governing documents, which in the end, are expected to evolve as owners’ wants and needs change over time.

Evaluate the supplemental governing documents on a regular basis.

The first step to ensuring that the supplemental governing documents are enforceable and reflect the general consensus around the community is to evaluate them on a regular basis. What might have worked years ago when the board first drafted such documents may not work now-or at the very least, may require some tweaking. Thus, each board should schedule an annual or bi-annual review of all the supplemental governing documents to verify: (1) that they do not conflict with the association’s recorded documents and/or current Georgia law; and (2) that they continue to reflect the wants and needs of the owners and residents within the community. It may be helpful to consult with an attorney or other industry professional during this process.

Understand the purpose of supplemental governing documents.

When evaluating the supplemental governing documents, it is important for the board to understand what “supplemental” actually means. In this context, it refers to additional support or explanation, which implies that the board-enacted rules do not conflict with the association’s recorded declaration and/or bylaws. Instead, the supplemental governing documents should expound on the covenants and use restrictions that are already binding on owners and residents. If any supplemental rule or guideline goes beyond the express or implied authority of the association-or if it is unclear on whether it does-it will most likely not be enforceable.

Provide notice of changes to the supplemental governing documents.

Each type of governing document will have a different amendment procedure. For board-enacted rules and regulations, design guidelines and other supplemental governing documents, changes can often be made unilaterally by a board vote. This flexibility allows them to be living, breathing documents, but it also highlights why notice of changes is imperative to ensure their overall enforceability. One suggestion is to re-send or re-publish the supplemental governing documents every time they are reviewed by the board. The board may also want to consider doing this even if no changes are made, as this should limit the number of owners and residents who can actually claim they never knew of the board-enacted rules.

Educate and involve owners in the changes.

Another important step in the process is keeping the owners and residents informed and involving them during the review process. The board could hold town hall meetings to discuss proposals, accept suggestions and changes, or answer questions related to how the supplemental governing documents are applied and enforced. Also, if the board is considering a particularly controversial change, it is usually a good idea to poll the membership prior to the new rule’s implementation to see if it will be supported.

Be patient and learn from mistakes.

Lastly, and perhaps most importantly, when proposing changes or trying to implement new rules and regulations, it is imperative for a board to both be patient and to learn from its mistakes. Owner and resident apathy is a constant battle for many associations, and promulgating supplemental governing documents often highlights the problem. There are certainly tricks an association can use, such as drawing a crowd with a social event or even offering raffles for those who partake in community polls, but the bottom line is that supplementing the declaration and bylaws is no easy task. Loopholes will appear, and when they do, the board should use them as learning experiences and not necessarily as an opportunity to fight over principle. Being prepared for the process will help make drafting or amending rules and regulations, design guidelines and/or other supplemental governing documents a much easier task

Article provided by Coulter & Sierra