Tuesday, September 8, 2009

How do you breathe new life into long ignored restrictions?

Have you ever served on an association board of directors only to find out that the prior board's actions (or inaction) may prevent you from now enforcing your community's restrictions? It's disheartening to learn that prior boards may not have taken their fiduciary duty to strictly and uniformly uphold the governing documents seriously.

Let's take the typical example of a pet restriction in the declaration limiting owners to no more than one pet weighing no more than 25 pounds. Let's assume that over the last decade, boards have overlooked this restriction and now more than a dozen owners out of 100 have multiple pets in varying shapes and sizes.

A new board is seated and is serious about upholding the governing documents. Is this conscientious board prevented from enforcing the pet restriction as a result of the prior board's lax attitude?

The answer is yes....and no. Association counsel will most likely advise the board to "grandfather in" any existing pet that does not comply with the restriction. Why? Owners with the noncompliant pets could challenge any enforcement action by the board by using a number of affirmative defenses such as selective enforcement (you're coming after me but not others), laches (too much time has lapsed since you knew or should have known about the violation) and equitable estoppel and waiver (it wouldn't be fair to enforce the restriction since I relied on the prior board's consent or acquiescence).

A grandfather clause is an exception that allows an old rule to continue to apply to some existing situations, when a new rule will apply to all future situations. The term originated in late-19th-century legislation and constitutional amendments passed by a number of U.S. Southern States which created new restrictions on voting. It allowed men to vote, even if they did not meet new requirements, if they had ancestors who had had the right to vote before the Civil War.

As to new violations, the board should consider republishing its pet restriction in order to once again safely start enforcing it. The board must mail or hand deliver notice of the board meeting at which it will vote to republish the restriction at least 14 days in advance. After the meeting, the Board Resolution republishing the pet restriction together with the actual restriction should be mailed to each owner to put him or her on notice that the restriction is active and will be enforced.

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