Board Overreach When Boards Abuse Their Power

Did you hear the one about the Florida family that was about to be kicked out of their HOA because the wife had just had twins? The family already had one child, and the arrival of the twins would put them over the two-kids-per-unit allowed by their North Palm Beach condo. The condo was not an ‘active adult’ 55-and-over community, but nevertheless it had a rule on the books limiting occupancy to two children. A bit Machiavellian to be sure, but true. 

Or how about the Fort Myers condo that fined a man suffering from ALS $100 a day because he was using a shopping cart instead of a walker to get around his unit, the parking area and the grounds? Apparently the community had a rule forbidding the use of any ‘storage item’ in a common area like a walkway. Another Sunshine State condo passed a rule preventing two unmarried people from living together, aimed at stopping gay couples from living in the development. After an uproar about the ban, the rule was reversed in 2015. Still another allowed pets, but forbade them from walking through the lobby; their owners had to carry them, regardless of the animal’s size. 

Every condo, HOA, and co-op has rules and regulations by which residents and their guests must abide. For the most part, these are usually pretty straightforward, but sometimes a board will draft a rule that is biased, unenforceable or that oversteps their powers. Others may try to level penalties against rule-breakers that are either unrealistic or legally unsound. Some are just plain stupid. These ‘bad’ rules and enforcement policies do more harm than good; they foment resentment toward the board, animosity among neighbors, and can even invite litigation and subsequent legal costs. Let’s take a look at good rules—and bad. 

The Nuts and Bolts of Rules

Not all rules are the same. In condos and co-ops, there are generally two different documents that govern what is and is not permissible: the governing documents, or bylaws, and the rules and regulations.

The bylaws are the equivalent of the Constitution for a co-op or condo—the papers signed by the founders of the building. That document “talks a lot about governance,” explains Brendan Keany, General Manager of Penn South, a large co-op community in New York City. “It talks a lot about the election of the board, the terms or the board, the ability of the board to have committees, and delegate duties and responsibilities. It deals with a lot of what I call ‘the fundamentals.’ The very serious stuff.”

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