Does Your Board Define the Problem Before Passing Rules?
Einstein is quoted as having said that if he had one hour to save the world he would spend fifty-five minutes defining the problem and only five minutes finding the solution.
As association counsel, we often do not hear of the existence of a new rule until we are being asked how to enforce it. That being said, good counsel will 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?”
Sometimes, the problem is clear and the rule is well drafted to cure that particular problem. A recent example includes a client in SW Florida with numerous bear sightings in the neighborhood. The board enlisted the help of the Florida Fish and Wildlife Conservation Commission and even reached out to a local legislator when the 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 is best off 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 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 fifty-five minutes drafting rules and regulations.
If you have a legitimate problem which your board has defined, you have considered it from different perspectives and 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 real potential for a problem you must ask yourself why you are passing this rule in the first place.