In sports like tennis, the boundaries are set by a bright line. If the ball lands on one side of the line, it’s in. If it lands on the other, it’s out. This leads to most calls or decisions being easy and uncontroversial (with some rare but notable exceptions).
In the law we often look to create similar bright lines. A statute of limitations says that if you file a lawsuit within three years of the event, it is permitted, But three years and one day – too late! How about a traffic light? If it was green, you had the right of way. If it was red, you didn’t!
When advising community associations, I encourage them to similarly try to create bright-line rules. Let’s look into why that is, and how they might help your association.
Bright-Line Rules in Community Associations
Before we go too deep into the benefits of such a policy, we need to examine exactly what a bright-line rule for a community association might be. Generally, they should be rules that are easy to understand and comply with. So many times I see guidelines that say: the fence should match the aesthetic of the community or be in harmony with the design in the neighborhood. Those are wonderful sentiments to be sure, but from a legal perspective they are almost useless. Why? Because everyone’s interpretation is going to be a bit different. Recall from our discussion here that determining if something is legal or not boils down to whether a case or law clearly prohibits it. If I put up a shed in my yard that is gray, and there are blue and white sheds in my community, have I kept in harmony with the design in the neighborhood? Debatable! And where will that “debate” take place? Possibly in court, costing both sides time, money, and animosity.
Instead, if the Association were to publish a permissible color palette, owners would immediately know whether or not their chosen shade is going to pass muster. Everyone saves time, money, and heartache.
Another common example is noise restrictions in condominiums. A poorly written rule might read: no loud music or disruptions late at night. But “late” for one person is early for another. Instead, defining “quiet hours” during which loud sounds should not be audible to other units will clearly help owners live in peace; a complaining owner can rely on the rule and point to the clock, and an owner playing their music loudly will know in advance what time they need to turn it down. Even if it rocks.
Predictability
Now that we have defined a bright-line rule, let’s look quickly at why they work. The first reason, which is very apparent in the examples above, is that they give owners trying to comply with them predictability. So many times I see association boards tell an owner to submit their application and see how the board rules on it. But that should almost never be the situation; instead, there should be clear guidelines for what an owner can do in order to submit a successful application. Having bright-line rules – and updating those guidelines regularly – can provide owners with the predictability then need to comply, and can lighten the load of the board or architectural committee as well.
Uniformity and Fairness
In addition to predictability, a bright-line rule will help the board to govern with the fairness and uniformity they should strive for, and their members should be able to expect. Recall from this discussion that selective enforcement – or treating the same issue differently for different owners – is a major mistake to be avoided by association boards. One great way to sidestep that minefield is to have not only clear guidelines for how to comply, but also clear penalties for any infraction. Treat like cases alike; use a schedule of fines or other pre-determined sanction in order to bring violations into compliance.
Ease of Enforcement
Bright-line rules can make compliance easier for owners, and can reduce the number of decisions the board has to make. But what happens when an owner violates a rule? Having bright-line rules in place can similarly help the association enforce its documents. An easy example is short-terms rentals. If your rules simply say that a condominium unit may not be used for “hotel or transient purposes,” then there may well be a fact question regarding whether or not that temporary renter last year was in fact a violation of the rule. But if your policy says that all leases must be in writing and for at least one year initial term, then no one has to speculate or offer their judgment as to what “hotel or transient” means. One year is one year; just like our discussion of the statute of limitations up above: either the lease meets the minimum or it doesn’t.
Draw the Bright Line
Returning to our tennis metaphor for a moment, we can see evidence of efforts to draw the bright line expanding throughout the sports world. Whether it be “robot umpires” calling balls and strikes or goal line soccer ball technology, making the line brighter and removing the subjectivity is an increasingly achievable target in the sports world. Why is that good? Because despite how iconic of a character John McEnroe was, athletes and fans generally want to have the issue decided on the objective merits, not on a subjective call. In the community association context, the aim should be the same: take questionable or subjective decisions out of the hands of the board, and avoid infuriated owners shouting “you cannot be serious” at your next meeting. Instead, create bright-line rules that are easy to understand, follow, and enforce.