Donna DiMaggio Berger, Esq.
Define the Problem Before Crafting the Solution!
Einstein is quoted as having said that if he had one hour to save the world, he would spend 55 minutes defining the problem and only five minutes finding the solution. While this sage advice has application in all areas of life, it is particularly true in a community association setting. How often do you find your board talking about the rules you want to adopt before defining the problems?
It is natural to want to fix problems and the act of creating is often a lot more fun than the act of analyzing. Still, the sometimes tedious analysis must come first in order to craft the right solution if one is even still needed after fully dissecting the issues.
As association counsel, we often do not hear of the existence of a new rule until we are being asked how to enforce it. Wise and experienced association counsel will typically ask for a history on the rule and how it came into existence. My first question is usually, "what was the problem, which required you to pass this rule?" Isn't this the same analytical process we would like our legislators to undertake prior to "fixing" our statutes each year?
Sometimes, the problem is clear and the rule is well drafted to cure that particular problem. A recent example includes a client in southwest Florida with numerous bear sightings in the neighborhood. The board enlisted the help of the Florida Fish and Wildlife Conservation Commission (FWC) and even reached out to a local legislator when the FWC was unable to remove the bear. Some neighbors unwisely spoke of taking matters into their own hands including possibly hunting the bear, which requires licenses, permits, and, naturally, is best done in a wilder setting than a homeowners association.
Ultimately, what was recommended was to have neighbors stop putting their garbage out the night before trash pickup since the odor was an attractant to the bear. Once the bear realized that its nocturnal foraging was not turning up food, it was assumed he or she would find more fertile hunting grounds. In this community's case, the problem was clearly defined—a big bear inside a neighborhood could mean death or injury to residents or pets. The rule was not overly broad or ineffective—take away the attractant, and you reduce the neighborhood's appeal to the bear. The rule was passed, the association members understood the need for the rule, and they are complying.
However, in other communities, boards sometimes engage in the reverse of the Einstein formula set forth above. They may spend five or fewer minutes defining a problem in their rush to spend 55 minutes drafting rules and regulations.
Let's look at another rule that wound up with the association being challenged for its passage and ultimately with the association losing in arbitration. The board, in this scenario, passed a rule, which required any owner wishing to enter the association pool and/or the association clubhouse to first find a director to open those portions of the common areas up to them. If no director could be found, then, sadly, the owner would have to forego using the clubhouse or the pool.
The board had not really defined what problem they were trying to address with the passage of this rule. Was the expense of giving owners keys to the common areas too great? Was there a need for directors to know which owners were using the common areas at any given time? Was there some other reason for such a requirement that created an unreasonable burden for the owners and, frankly, was a nuisance to the directors as well? Ultimately, the rule was deemed to be unenforceable, and this board learned a lesson the costly way that you must define first and craft second.
If you have a legitimate problem, which your board has defined, you have considered it from different perspectives, you have weighed various consequences of passing and not passing a rule addressing it, and you have rule-making authority in your governing documents, then by all means adopt a rule. Your members will understand and for those who do not, your chances for withstanding an enforcement challenge are good. However, if there is no current problem and no foreseeable problem in the near future, you must ask yourself why you are passing a proposed rule in the first place. Just as communities suffer from not having reasonable rules in place when they need them, they are also at a disadvantage when archaic and ineffective rules are left in place.
It doesn't require Einstein's input to understand how vital rules and regulations are to the proper functioning of a shared ownership community. We can be guided, however, by his reminder that tackling things in the proper order usually results in a better outcome.
Donna DiMaggio Berger, Esq., has been representing all types of shared ownership communities in Florida for the last two decades. She is a shareholder at Becker & Poliakoff in Fort Lauderdale. Berger also writes the popular Condo and HOA Law Blog as well as operating one of the largest groups on LinkedIn, Condo and HOA Law & Living, related to community association issues. You can follow Berger on Twitter at @CondoHoaLaw. She can also be contacted at firstname.lastname@example.org.