Memo: Community Rules, Policies, and Guidelines, 2003

TVC-Members Message # 1006 from Sandra Hinson for Admin

Attached and Below (and on the Bulletin Board) you will find a summary of the Administration Team’s explanation of the distinctions between policies and guidelines, and a whole lot of other fascinating stuff about community rules, policies, guidelines, the ways we should record policies and the role of the board in adopting policies. Read on…. We’ll discuss this at Sunday’s membership meeting

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Community Rules, Policies and Guidelines

The following notes on policies and guidelines are based on conversations and email communications with TVC’s attorney, Betty Hileman. These discussions began in October 2003.

1. The Hierarchy of Authority. The TVCHA governing documents or condominium instruments are ranked into a “Hierarchy of Authority.” The lower levels cannot contravene the higher levels. Here is the TVCHA’s ‘hierarchy of authority:”

• The DC Condominium Laws lay out the broad legal framework within which condominium associations must operate. They have the highest authority.
• The Declaration has the next-highest priority and authority.
• The Bylaws have the next-level of priority and authority.
• Community Rules are the next-level. (Or, as we tend to call them at TVC, the ‘policies.’)

Community rules do not get incorporated into the bylaws. Bylaws are necessarily broad and somewhat difficult to change. Community rules help clarify and specify, narrow-down and interpret Bylaws and their day-to-day application. Community Rules can be changed more easily and are meant to be flexible.

2. The Role of Guidelines. We asked Betty: What role do guidelines play in a condo association?

Here is a summary of Betty’s response: “Guidelines,” or less formal expressions of our expectations of each other, are not officially part of the condominium instruments, unless they are incorporated into policies. Often, policies will contain guidelines. For example, an architectural review policy may contain guidelines for determining and adjudicating questions related to changes in units or common elements. These guidelines can be updated or amended easily. Guidelines that exist outside of policies have no legal force.

This does not mean, however, that guidelines have no place in a Condo Association. Less formal agreements can reflect the community’s intent without taking the issue to a more legalistic level. Sometimes, this may be advantageous. It all depends on how formalized an agreement needs to be, from a legal standpoint. Some policies need to be legally enforceable. Examples of these include a Late Fee Collection Policy (for condo fees) and an Architectural Review Policy.  Agreements that don’t necessarily have to be legally enforceable could be treated as guidelines.

The Administration Team’s recommendations on guidelines: In some cases, less formal guidelines can give us a way of ‘testing out’ whether a more formal policy is needed. For example, a number of people works on parking lot guidelines 3 years ago. When there are conflicts around the parking lot, we usually have some discussion about whether a formal policy would help prevent the problem. So far, we as a community have addressed parking lot conflicts by discussing and describing our expectations of each other. Though there are differing opinions about this, it seems to us that, so far, we have managed parking problems without a formal policy. The same could be said for the long-dormant draft of a pet policy. Perhaps shared understandings about pets have emerged over these four years. Should they be written up into a set of guidelines that pet owners and members without pets can refer to? Or do we need a more legalistic approach? Good arguments can be made both for and against a having a formal policy. So far we have been able to deal with pet issues informally.

Guidelines also allow the community to develop a set of expectations about an aspect of community life that would not necessarily be ‘enforceable’ from a strictly legal standpoint, but which we feel is important from a community standpoint. Consider our proposed resale guidelines. In these guidelines, we spell out an expectation that the community seems to agree with, but which may not be legally enforceable, which is that a prospective buyer must attend an orientation and/or membership meeting before the sale is completed.

For most issues, the way we have worked together to develop our expectations of each other has been less about legal enforcement and more about reaching common understandings through processes in which all voices are heard. This seems to us to embody our desire to relate to each other less as members of a condo association and more as members of an intentional community. The process of deliberation and discussion often is more valuable in reaching shared understandings than the written policy or guidelines. Whenever policies are proposed, we should ask ourselves, “Is this something that needs to be formalized and legally enforceable, or is this something that we can work through together so that we better understand each other’s needs and expectations (which may be less about a policy and more about being heard)?” If it is not ultimately about formal rules, then we think guidelines may be more appropriate.

3. Community Rules. Our Bylaws use the term ‘community rules’ instead of ‘policies’ to describe our formal expectations or ‘rules.’ We asked Betty whether there is a difference and which term we should use to describe our policies.

According to Betty, we can call the community rules ‘policies’ or  ‘rules.’ It does not matter. Policies usually contain ‘rules.’ Therefore, ‘policies’ is a broader term.

She suggested some sample language for a policy book: “Members are expected to comply with community rules that are contained within the following policies…”

4. The Board’s Role. Our Bylaws indicate that community rules (or policies) must be adopted by the Board of Directors. The relevant language is in Section 8, which reads: “The Board shall promulgate, amend and enforce community rules…” At the same time, our Bylaws affirm the role that consensus plays in our decision-making. We asked Betty’s advice on how we should understand Section 8 regarding the Board’s role in adopting community rules.

To comply with the letter of the law, and ensure that policies are enforceable, Betty advises that whenever the community reaches consensus on a policy, the Board should soon thereafter formally adopt that policy. This should become the Association’s practice for all major decisions in the future.

Meanwhile, the Board could go back and ratify prior policies. It is especially advisable that the Board ratify existing policies that need guaranteed legal enforceability, such as the Late Fee Collection Policy and the Architectural Review Policy. The decision to ratify a policy or policies should be recorded in the Board minutes and included in a notice to all Association members.

5. Recording TVC Policies. Betty’s recommendations in #4 above raised questions about how policies and rules should be recorded and disseminated once they have been adopted.

According to Betty, every unit owner should have access to the place where policies are located. It is recommended that new policies be placed in members’ mailboxes and that all policies be kept in a central location. Betty’s recommendation is that all polices in force should be kept in a policy book. Electronic copies should have paper-copy backups. Any rule that the Association expects members to follow must be included with the resale packet.

If we adopt a policy that is to be reviewed by a certain date, Betty suggests we clarify that it is a  ‘review date’ and not an ‘expiration date.’ To avoid confusion, we should include the review date in supporting documents instead of in the text of the policy.