Overview of Rules and Regulations.
One of the most important issues facing Minnesota community associations is rules and regulations policy and enforcement. Community associations offer their homeowners a unique and desirable neighborhood in which to live. Homeowners choose a community association based on appearance, lifestyle, amenities and maintenance convenience. By the very nature of community association living, homeowners must abide by and rely upon the associations rules and regulations to ensure these benefits continue in their community. Effective drafting and proactive enforcement of the associations rules and regulations is therefore necessary to preserve the community for the benefit of its homeowners.
Both the Uniform Condominium Act, Minnesota Statutes Chapter 515A (UCA) and the Minnesota Common Interest Ownership Act, Minnesota Statutes Chapter 515B (MCIOA), provide statutory authority for community associations to adopt rules and regulations. MCIOA section 3-102 authorizes the association to adopt, amend and revoke rules and regulations that are consistent with its governing documents.
Governing Document Authority.
Articles of Incorporation.
Types of Rules and Regulations.
Associations adopt pet restrictions to restrict or prohibit association homeowners from maintaining pets within the association. Most pet restrictions limit the type, number and/or size of pet that may be maintained within an association unit. Some associations prohibit pets.
Leasing of Units.
Associations adopt leasing restrictions to restrict association homeowners ability to lease their units within the association. The purpose of a leasing restriction is to prevent the association from becoming a rental community. Leasing restrictions must be carefully drafted to ensure that they are uniformly restrictive to all homeowners.
Common Property Usage.
Associations may restrict the age of association homeowners. These restrictions are typically used in senior housing community associations. The restrictions must be carefully drafted to comply with the Fair Housing Act and the Minnesota Human Rights Act.
Most associations governing documents contain architectural control restrictions. Many associations adopt additional and more restrictive architectural control restrictions through its rules and regulations policy. The rules and regulations typically govern issues such as storage sheds, basketball hoops and landscaping.
Business Use of Units.
Many associations have restrictions on the use of its units for business purposes. These restrictions are generally one of the following two types:
Residential Use Restrictions.
These restrictions limit the use of association units to residential purposes. This is the more vague of the two restrictions on business usage. Enforcement of residential purposes restrictions typically involves a court decision of whether an alleged violation is inconsistent with the normal use of a residence. A common example is a daycare business. There is a mix of authority on whether a daycare facility violates a residential purposes restriction. One argument is that an in-home daycare facility is consistent with the residential usage of the unit, while the competing argument is that the daycare facility is a business, which is inconsistent with the residential usage of the unit.
Business Use Restrictions.
This is the more specific restriction, which restricts association homeowners from conducting business within their unit. In this case, a daycare facility would clearly violate the business use restriction.
Drafting Effective Rules and Regulations Policy.
Analysis of Existing Rules and Regulations.
Need for new and revised Rules and Regulations.
Analysis of alternatives to Rules and Regulations.
The associations homeowners should be involved in the review and drafting of a rules and regulations policy. By doing so, the associations homeowners will be given the opportunity to voice their concerns with any existing rules and regulations and raise ideas for new rules and regulations. The ultimate goal of the association is achieve a rules and regulations policy that will be voluntarily followed by the homeowners. Involving association homeowners will assist in achieving voluntary compliance.
Consistent with governing documents.
Enforcing Rules and Regulations.
Enforcement Policy and Procedure.
The Association cannot provide too much information to its homeowners when adopting and enforcing rules and regulations. Homeowners that are made aware of the associations rules and regulations policy will be more apt to follow the policy. Furthermore, the association will be able to more effectively enforce its rules and regulations policy when it has communicated its policy, including violation sanctions, to its homeowners.
Establish Reporting and Response Procedures.
The associations rules and regulations policy must have an effective reporting and response procedure. Without such a procedure, the Board of Directors will receive constant telephone calls from homeowners reporting rules and regulations violations. A proper reporting and response procedure will encourage homeowners to report violations of rules and regulations through written procedures, which will document the violation reports received by the association.
Timely and consistent enforcement of the associations rules and regulations policy will lead to speedy enforcement of violations and should lead to fewer violations in the future. On the other hand, the associations failure to respond to rules and regulations violations in a timely and consistent manner will lead to apathetic homeowners, who are unwilling to report violations, and could lead to additional violations where the consequences are not perceived as real.
Use Informal Notices.
The association may avoid rules and regulations enforcement conflict by personally contacting homeowners who are violating rules and regulations. The association will be able to make an initial determination as to whether the violation actually exists and what remedy, if any, is required. If the homeowner does not respond to the personal contact, the association must proceed to formal notice procedures.
Use Formal Notices.
The association must document its response to rules and regulations violations by providing written notice of the violation to the homeowner. The notice should provide an explanation of the alleged violation and should provide the homeowner with notice of an opportunity to be heard before the associations Board of Directors or its rules and regulations enforcement committee.
Give Opportunity to be Heard.
The Association should always provide the homeowner with an opportunity to be heard by the associations Board of Directors or its rules and regulations enforcement committee. The hearing should occur before imposing any fines or penalty on the homeowner for the alleged rules and regulations violation. The hearing is used to provide the homeowner with an opportunity to explain any mitigating circumstances that could affect the associations decision to levy a fine or penalty in response to the alleged rules and regulations violation. The information gathered at the hearing may also affect the associations decision on a procedure to be used in enforcing its rules and regulations policy.
Make a Decision.
Many associations delay the decision on a rules and regulations violation, because the associations Board of Directors is reluctant to hurt a homeowners feelings and create animosity within the association. However, the associations reluctance to make a decision may be fostering those same feelings in the other homeowners that are complying with the associations rules and regulations policy. Prompt decision making on rules and regulations violations will encourage reporting and should lead to a higher percentage of compliance in the future.
The association may provide for various alternatives in its rules and regulations policy for violation consequences. The overriding concern is to provide consequences to encourage compliance, but to ensure that the association does not become liable to the homeowner for excessive fines and penalties. Regardless of the violation consequence, the association must use caution in exercising self-help to correct a rules and regulations violation. The association may choose from the following enforcement consequences:
Restrictions on common property usage.
Is the association aware and prepared to invest the time necessary to enforce the rules and regulations policy?
Is the association aware of and prepared for the emotional toll that litigation may create?
Is the association aware of and prepared for the cost of litigation?
Is the association aware of the chances of prevailing?
Does the association have a choice in deciding whether or not to enforce the rules and regulations policy?
Injunctions/temporary restraining orders.
Types of Alternative Dispute Resolution (ADR).
The Minnesota district court rules provide several examples of ADR, including the following:
A forum in which each party and its counsel present its position before a neutral third party, who renders a specific award. The parties may stipulate in advance whether the award is binding and enforceable. Otherwise, the award is not binding and either party may request a new trial.
Consensual Special Magistrate.
A forum in which a dispute is presented to a neutral third party in the same manner as a civil lawsuit is presented to a judge. This process is binding and includes the right of appeal.
Moderated Settlement Conference.
A forum in which each party and their counsel present their position before a panel of neutral third parties. The panel may issue a non-binding advisory opinion regarding liability, damages, or both.
Summary Jury Trial.
A forum in which each party and their counsel present a summary of their position before a panel of jurors. The number of jurors on the panel is six, unless the parties agree otherwise. The panel may issue a non-binding advisory opinion regarding liability, damages, or both.
Early Neutral Evaluation.
A forum in which attorneys present the core of the dispute to a neutral evaluator in the presence of the parties. This occurs after the case is filed, but before discovery is conducted. The neutral provides a candid assessment of the strengths and weaknesses of the case. If settlement does not result, the neutral narrows the issues in dispute and suggests guidelines for managing the case.
Neutral Fact Finding.
A forum in which a dispute, frequently involving complex or technical issues, is investigated and analyzed by an agreed upon neutral who issues findings and a non-binding report or recommendation.
A forum in which a neutral third party facilitates communication between the parties to promote settlement. The mediator is restricted from imposing his or her own judgment on the issues for that of the parties.
A forum in which each party and their counsel present their opinion before a neutral party, who issues an advisory opinion regarding the merits of the case. The advisory opinion is not binding unless the parties agree otherwise and enter into a written settlement agreement.
A highbred of mediation and arbitration in which the parties initially mediate their disputes, but if they reach impasse, they arbitrate the deadlocked issues.
The parties may agree to create their own alternative dispute resolution process.
The association may elect to have alternative dispute resolution as a voluntary option for the association and its homeowners. The association and the violating homeowner would agree to arbitration at the time that a dispute arises.
The association may adopt a mandatory alternative dispute resolution process in its rules and regulations policy, or by amendment of its governing documents. The association should consider this option with extreme caution. No alternative dispute resolution process is the best option for all fact scenarios, and the association should maintain flexibility in enforcing rules and regulations violations.