THE LEGAL FRAMEWORK
to provide for the comfort and safety of
PAGE 57
Enforceability
Estate manager liability
residents, the equitable use and enjoyment
The board must have the authority to enforce
of facilities, and the equitable burden of
a rule before drafting it and can then make
responsibility in a community.
the rule specific. Vague statements such
as ‘loud and boisterous activity should be
Positivity
avoided’ leave questions about whom, where
Residents must understand and appreciate the
and when these sounds should be avoided.
need for the rule and comply with it voluntarily
Both mini-bikes and lawn mowers are loud, for
and neither the board nor the manager is in
example, so should they both be restricted?
a position to police the community.
Does noise from late Saturday night parties
create the same problems as noise from
Efficiency
a Sunday afternoon wedding reception or
Good rules accomplish exactly what the board
barbecue?
intended them to accomplish. Unfortunately,
some associations try to solve a problem by
Whilst
passing rules that are either too harsh or too
unambiguously drafted rule, overly specific
broad. Such rules may set off a number of
rules can also create enforcement problems.
chain reactions, including situations in which:
For example, a particular association might
· Residents ignore the rule and find the board
autocratic or dictatorial.
·
is
important
to
create
an
choose to institute a rule that states: ‘between
the hours of 10pm and 7am, no noise shall
be permitted in a unit that measures 30
The board complains that residents are
apathetic and ungrateful.
· Residents ignore other rules.
· The newsletter adopts a scolding tone.
· Residents complain about the board to
decibels or greater for more than 10 seconds
in the nearest adjacent unit or public area’.
Though specific in nature and easy to enforce
in court, the board, however, might find it
the
manager.
·Residents
it
difficult to obtain voluntary compliance. To
write an effective rule, the board must balance
complain
that
rules
are
not
specificity with simplicity and obedience. No
uniformly enforced.
rule will meet each criterion equally.
No side effects
Flexible
Good
rules
resolve,
rather
than
create,
reasonable
particular association might be concerned
judgment
and
mediation
in
about teenagers damaging lawn areas when
the problem, the board might choose to
industry.
Even though the members approve the rules,
generally, it is the estate manager who
applies the rules, informs individuals of a
breach via letter and imposes the penalty. It
is a common occurrence for a rule and the
purpose of the rule to be lost in translation
– by the time letters are sent, ‘trial by email’
has taken place and angry, open letters
have been written, the issue lands up on the
agenda at a board meeting and finishes with
letters from lawyers….
The message of the rule and the notice that
the rule has been breached, coupled with
an explanation of the purpose of the rule
penalty, is extremely important. In the majority
enforcement.
they play ball games. In an attempt to resolve
This interesting quote resonates with our
and the approach of the person applying the
Good rules allow flexibility and the use of
problems. For example, the board of a
“10% of world conflict happens as
a result of what people do and say,
and 90% because of how people do
and say things.” Source unknown.
Communication to residents
Associations do not always publicise rules
prohibit groups of three or more peop