Definition of Rules
Rules are regulations adopted by a board governing procedure or conduct within a development.fn1
Rules are different from the regulations and restrictions in other governing documents such as the declaration (CC&Rs), especially where those other documents require approval of the owners to adopt or amend.
FN 1. The term "rules" is not defined in the Community Association Act or the Condominium Ownership Act. So, we look to Utah Code § 68-3-11 which provides that
"Words and phrases are to be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined by statute, are to be construed according to such peculiar and appropriate meaning or definition."
Utah case law further states that when a term is not expressly defined in the statute and "does not appear to be a technical term of art, we construe it to partake of the ordinary meaning the word would have to a reasonable person familiar with the usage and context of the language in question." See Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 18 (only seeking to determine the ordinary meaning of the term at issue after finding that the "term is not expressly defined in the Act, and does not appear to be a technical term of art"). Nontechnical words are generally "given the meaning which they have for laymen in ... daily usage." O'Dea v. Olea, 2009 UT 46, ¶ 32. "The starting point for discerning such meaning is the dictionary." Hi-Country at ¶ 19. "But we do not interpret the 'plain meaning' of a statutory term in isolation. Under our rules of statutory construction, we must give effect to every provision of a statute and avoid an interpretation that will render portions of a statute inoperative. To achieve this goal, we construe the provision at issue with every other part or section so as to produce a harmonious whole." Warne v. Warne, 2012 UT 13, ¶¶ 35, 36.
As to rules being a separate concept from restrictions in a declaration, and the distinction that rules are adopted and amended by a board as opposed to a declaration adopted and amended by the owners, the term "rules" is to be construed according to the context given in the statutes. The context is given in such subsections as Utah Code § 57-8a-217(1)(a) ("a board may adopt, amend … rules"), § 57-8a-102(7) and § 57-8a-212, § 57-8a-209 § 57-8a-701(2)(a) and (b), and § 57-8a-228(5). As to the plain meaning of rules, see merriam-webster.com/dictionary/rule (defining rule as, "A regulation governing procedure or conduct."). Accordingly, the definition of "rules" is derived from its plain meaning, together with its usage in the context of the statutes. Thus, rules are regulations adopted by a board governing procedure or conduct within a development.
Authority to Adopt Rules
Common law provides that an association has an implied power to adopt reasonable rules to (a) govern the use of the common property, and (b) govern the use of individually owned property to protect the common property. See Restatement Third, Property (Servitudes) § 6.7.
Rules are different from the provisions of a declaration, bylaws, articles of incorporation or plat. The declaration can generally only be amended with the consent of the property owners. By contrast, rules are adopted by the board and are seldom recorded. Restrictions that might be valid if included in a declaration may be invalid if effected by a rule because property owners lack the safeguards afforded by the vote needed for an amendment to the declaration.
An association has power to make rules in furtherance of its power over the common property. The association has no inherent power to regulate use of the individually owned properties in the community, however, except as authorized by statute or the CC&Rs, and as implied by its responsibility for management of the common property.
In a community association, the law authorizes a board to adopt rules, including design criteria, subject to the law and the declaration and subject to the right of the owners to disapprove a rule. See Utah Code § 57-8a-217.
See also, Index, rulemaking procedure.
In a condominium association, generally, the declaration should specify the authority that the board has to adopt rules, including how far that authority extends and any limitations on that authority.
Absent such provisions in the declaration, a board's authority to adopt rules is implied throughout the Condo Act, even if not clearly and expressly stated. The definition of management committee in the Condo Act impliedly, if not expressly, grants the management committee authority to adopt rules. It states: "Management committee means the committee as provided in the declaration charged with and having the responsibility and authority to make and to enforce all of the reasonable rules covering the operation and maintenance of the property." See also, e.g., Utah Code § 57-8-8.1 (equal treatment by rules required, limits on rules imposed), § 57-8-8 (requiring compliance with "house rules" and "administrative rules and regulations"), § 57-8-37 (authorizing fines for violations of rules), § 57-8-10.1(2)(c) (requiring adoption of a rule or resolution), and § 57-8-3 (defining governing documents to include rules).
Common Area vs. Individual Units
Can rules restrict use of common area?
Rules may regulate the use, maintenance, repair, replacement, and modification of common areas, unless otherwise provided in the declaration. See Utah Code § 57-8a-218(14) and 57-8-8.1(5).
The association’s power to regulate the use of common property is limited only by the provisions of the governing documents, any applicable statutes, the requirement that the rules be reasonable, and each board member's duty to exercise business judgment on behalf of the association and the owners. In determining the validity of such a rule, the primary determinant is whether the rule is reasonably related to furthering a legitimate purpose of the association. Rules designed to minimize wear and tear or damage to common property, to promote safety in use of common property, and to minimize conflicts over use of scarce resources, like parking or tennis courts, clearly further the association’s prime purpose of maintaining and managing the common property.
Adoption or publication of rules that are illegal may subject an association to liability. See, e.g., Martin v. Palm Beach Atlantic Ass’n, 696 So.2d 919 (Fla.Dist.Ct.App.1997) (publication of house rules prohibiting occupancy by children under the age of 12 violates federal Fair Housing Act § 3604(c) even if there is no attempt to enforce the rules).
Can rules restrict individual lots/units or what goes on in a home?
In a community association, a rule may only regulate activities within a lot (including backyard landscaping or amenities) and within a dwelling if the activity:
- is unreasonable,
- is not normally associated with a project restricted to residential use,
- creates monetary costs for the association or other lot owners,
- creates a danger to the health or safety of occupants of other lots,
- generates excessive noise or traffic,
- creates unsightly conditions visible from outside the dwelling,
- creates an unreasonable source of annoyance to persons outside the lot,
- is not in compliance with local laws and ordinances, including nuisance laws and ordinances, or
- if there are attached dwellings, creates the potential for smoke to enter another dwelling or common area.
See Utah Code § 57-8a-218(7).
Note that a rule may not require an owner to dispose of personal property that was on a lot before the adoption of the rule if the personal property was in compliance with all governing documents previously in force. This exemption does not apply to a subsequent owner who takes title to the lot after adoption of the rule. The CC&Rs may remove this exemption altogether so that if the CC&Rs allow for it, a rule may require an owner to dispose of personal property that was on a lot before the adoption of the rule. See Utah Code § 57-8a-218(10) and (19).
A rule may not restrict the construction of a habitable living unit created for the purpose of rental of 30 days or longer that is within an owner-occupied, detached (free-standing) non-condo home (unless the construction would violate local code or ordinance). This includes, for instance, a basement apartment that has its own kitchen and sleeping and bathroom facilities, where the owner lives in the home and the home is not a townhome, duplex or other attached home and is not a condo. See Utah Code § 57-8a-218(17).
For restrictions on rules regarding water-efficient landscaping, see Index, water.
For restrictions on rules regarding solar devices, see Index, solar.
In a condominium association, if the declaration grants a general power to adopt rules, the association has the power to adopt reasonable rules designed to protect owners from unreasonable interference in the enjoyment of their individual units and the common property caused by use of other individually-owned units. Beyond that, absent specific authorization in the declaration, the association does not have the power to adopt rules that restrict the use or occupancy of, or behavior within, individually-owned units. See Restatement Third, Property (Servitudes) § 6.7.
In both condo and community associations, unless the CC&Rs authorize the rules to do so, a rule may not treat a rental lot/unit owner differently because the owner owns a rental, except the rules may limit the owner from using common area other than to attend meetings or manage the lot/unit or may charge the owner for use of the common areas, and, for short-term rentals, may limit the number of guests who use the common areas and facilities. See Utah Code § 57-8a-218(2) or § 57-8-8.1(2).
A rule may require a minimum "lease" term, unless contrary to the declaration. See Utah Code § 57-8a-218(9)(b) and 57-8-8.1(4). (lease is defined in the Community Association Act, but lease is not defined in the Condo Act.)
A rule may not prohibit an owner from installing a personal security camera immediately adjacent to the entryway, window, or other outside entry point of the owner's dwelling unit. See Utah Code § 57-8a-218(15). But, in a condominium, a rule may prohibit a unit owner from installing a personal security camera in a common area not physically connected to the owner's unit. See § 57-8-8.1(6)
The law also limits how rules may restrict signs, such as political, for sale, religious and holiday signs. See Index, signs.
For restrictions on rules regarding installing and using electric vehicle charging systems, see Index, electric vehicles.
Statutes and Cases:
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)