Operating rules are important tools for community associations. They supplement the CC&Rs and can provide important details regarding the use of the common area and the separate interests within the development. However, we are frequently presented with rules adopted by boards that are impossible to enforce. Rules are not self-enforcing; therefore, rules cannot simply be aspirational. When considering and preparing rules, boards need to be keenly aware of whether the rules they are enforcing can actually be enforced.
We often joke that, as lawyers representing community associations, we frequently deal with the four “Ps” – people, pets, parking and pools. Not surprisingly, most of the aspirational and unenforceable rules we see relate to one of the “Ps.”
Aspirational Rules Regarding Pets
It is common for rules to include weight limits on dogs. However, I’ve never known an association to have a pet scale. If an association adopts a rule prohibiting dogs over 40 pounds, for example, that rule can’t possibly be enforced uniformly unless every single dog is weighed. Although it is easy to tell that some dogs are clearly well over 40 pounds, even a dog that weighs 41 pounds would be in violation of the rules. A board can’t enforce rules against those residents who have dogs well over 40 pounds and, if it tried to, it should expect that the subject of the enforcement action would quickly identify every dog in the community that might weigh more than 40 pounds. Arguably, weight restrictions are also unenforceable as being violative of the Davis-Stirling Act; specifically, Civil Code section 4715 guarantees owners the right to keep at least one pet within the development. “Pet” is defined, in Civil Code section 4715(b), as including “any domesticated” dog; i.e., a dog of any size.
Civil Code section 4715 also arguably prohibits “breed restrictions,” i.e., rules that prohibit certain breeds of dogs labeled as “dangerous” or “fighting breeds” from living in the development – any domesticated dog includes a dog of any breed. Even if breed restrictions do not violate the Davis-Stirling Act, they are difficult (if not impossible) to enforce and are therefore not recommended. Many dogs are “mixed breed.” Does a rule prohibiting German Shepherds apply to a “mixed breed” dog that happens to only be part German Shepherd?
Additionally, the definitions of some breeds are incredibly broad. “Pit bull,” for example, is sometimes defined as “any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the physical traits of any one or more of the above breeds.” A board can’t possibly determine whether a dog is a “pit bull” by simply looking at a dog, and genetic tests for dogs (assuming a board could even require testing) may not be accurate.
Another issue with weight and breed restrictions is that they cannot be applied to assistance animals (i.e., service or companion/emotional support animals). An assistance dog can be any size and any breed so long as it provides assistance. Therefore, an additional challenge to the enforcement of pet restrictions is that the pet owner will provide documentation to establish that the dog is an assistance animal, thus negating the association’s ability to enforce any weight or breed restrictions.
We recommend that rules focus on the behavior of animals (i.e., pets and assistance animals) in the development. If the rules specifically prohibit aggressive behavior by animals within the development, a board can take enforcement action against any dog, regardless of size or breed.
Aspirational Rules Regarding Vehicles and Parking
Parking rules are some of the most important operating rules for associations. They are also the source of many enforcement disputes and often contain rules that simply can’t be enforced. Even though speeding has nothing to do with parking, we frequently see parking rules that contain speed limits for vehicles traveling through the development. Our concerns about speed limits are the same as those about weight limits for dogs. Unless an association installs a sign that records the speed of all vehicles, there is no way for associations to enforce a speed limit rule because the association would not have any objective evidence regarding a vehicle’s speed. The better approach is to adopt a behavior-based rule that prohibits reckless driving within the development, and include that rule within “Vehicle and Parking Rules.”
It is very common for parking rules to include limitations on the amount of time that vehicles may be parked in common area (e.g., vehicles may not be parked in the common area for more than 72 hours). However, unless an association has 24-hour video surveillance of the common area parking areas, an association cannot establish definitively that a vehicle has been parked in the common area for 72 hours. More often than not, parking rules are enforced by community volunteers who assume that, if a vehicle is seen on three consecutive days in the common area, that is sufficient to take enforcement action for violation of a “72-hour” rule. However, it is very easy to challenge such an enforcement action for lack of indisputable evidence. A board simply can’t prove that a car wasn’t moved during the three days and returned, even to the exact same space. Parking rules can include time limitations for parking in the common area, but the rules must be written to, for example, define “day” (for purposes of parking) as any portion of a 24-hour period.
In California, operating rules are part of the governing documents, which means they are legal documents. It is important for the board to work with the Association’s legal counsel to prepare operating rules, or at least have counsel review proposed rules before they are adopted. Unfortunately, rules are not self-enforcing. Therefore, it is important that associations adopt rules that address the specific needs of their community and that can be enforced.
Contact your favorite HGCT attorney if you have questions about your association’s rules.