Managers, board members and homeowners take note: YOUR ACTIONS (OR INACTIONS) WILL BE JUDGED FIRST BY WHETHER OR NOT YOU ARE COMPLYING WITH YOUR GOVERNING DOCUMENTS. Too many boards of directors assume that their decisions, actions and inactions will be judged by a reasonableness standard. They wrongfully assume that so long as their decisions are reasonable, both they and their associations will stay out of trouble or avoid liability. Reasonableness certainly plays a part in any board’s fulfillment of their duties and the lawfulness of their actions. However, an otherwise reasonable action can still be unlawful if the Association fails to comply with its governing documents.

It’s often said, and important for boards to remember, that following your governing documents is generally considered reasonable and failing to follow your governing documents is generally considered unreasonable. However, sometimes boards miss the crucial steps of reviewing their governing documents and skip straight to making a decision. Even if that decision seems rational and fair, the association can end up on the losing end of litigation if that rational and fair decision doesn' comply with their own governing documents.

I have a favorite case that demonstrates how easy it is to forget about following your governing documents while believing that you are acting reasonably on behalf of the Association. The case, from a Florida Appeals Court, involves the Forest Villas Condominium Apartments, Inc. (“Association”) which sued one of its owners, Loretta Prisco, claiming that she kept a dog in her unit in violation of the Association’s governing documents (Prisco v. Forest Villas Condominium Apartments, Inc. (2003)). Since 1979, the Association’s governing documents included a pet restriction which said:

[W]ith the exception of these [grandfathered] dogs, no pet of any kind whatsoever, except fish and/or birds, shall ever be permitted to be harbored in FOREST VILLAS . . .

Ms. Prisco claimed that the Association had abandoned the rule and was selectively enforcing it against her and her dog. In support of her argument, Ms. Prisco proved there were several cats and dogs living in the condominium, all with the board’s knowledge. As part of its ruling, the trial court specifically found that evidence of cats living in the condominium didn’t support a claim of selective enforcement because:

“Cats are not the same as dogs, and the condominium allowing a cat on the premises does not equal to disallowing a dog” because “dogs clearly bark, cats do not, dogs need to be walked outside of their home, cats do not as they use litter boxes for the most part.”

Seems reasonable, right? The trial court agreed that the board could reasonably treat dogs and cats differently. Cats are, in fact, different than dogs. They don’t make as much noise or impact neighbors like a barking dog that must be walked outside on a regular basis. The trial court went along with the Association’s argument and based its ruling on whether or not the Association’s actions were reasonable, and the Association prevailed.

The point is, if a trial judge can ignore the plain language of an association’s governing documents because the end result seems reasonable, then it’s easy to see how an association board of directors can make the same mistake. Unless you happen to get in front of this Florida judge, you can’t ignore your governing documents, basing decisions solely on what you believe to be a reasonable approach to association governance. Applying reasonableness without reference to the governing documents might work some of the time – but not always.

The Florida case didn’t end with the trial court. Ms. Prisco appealed the trial court decision . . . and she won. She prevailed on appeal because the higher court didn’t care about the differences between cats and dogs or whether cats pose a greater or lesser impact on neighboring unit owners. All the appellate court cared about was the Association’s governing documents. In its decision the court found:

The [pet] restriction is clear and unambiguous and states that, other than fish and birds, “no pets whatsoever” shall be allowed. The fact that cats are different from dogs makes no difference. What does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited. Restrictive covenants should be narrowly construed, but should not be construed in a manner that would defeat the plain and obvious purpose and intent of the restriction. In this case, the clear purpose of the restriction is to prohibit all types of pets except fish and birds. The trial court's interpretation defeats that plain and obvious purpose. Thus, with regard to this issue, Prisco has shown that the Board is selectively enforcing the restriction and the summary judgment in favor of Forest Villas must be reversed.

In other words, it doesn’t matter how reasonable a board’s action might be if their decision is inconsistent with the association’s governing documents. If your governing documents contain provisions that your community won’t or doesn’t want to enforce, then consider amending those policies to better reflect the community’s values. Unless your governing documents match the actions being taken by the board, there will always be one or more potential plaintiff out there that could sue the association for failure to comply with its governing documents.

So what are some steps that associations can take to make sure they’re enforcing their governing documents?

1. Don’t assume you know what your governing documents say. Read them and refer to them often.

2. Anytime a Board starts to consider whether or not to enforce a provision in its governing documents, take pause and tread lightly. This is not to say that boards don’t often make decisions that involve an exercise of discretion. But sometimes, boards take the liberty of assuming discretion when their governing documents don’t provide for it.

3. Know the difference between exercising discretion and ignoring your governing documents. If your governing documents require notice not less than 10 and not more than 60 days in advance, you don’t have the discretion to send notice out 65 days in advance. If your governing documents require a vote of the owners to approve a specific action, the board can’t unilaterally take the action as an exercise of its “discretion.”

4. If the best authority you have for an action includes, “we’ve always done it this way” then don’t do it.

5. Don’t forget about procedures. Boards sometimes find that they have authority to take an action but forget to follow the procedures they are required to follow in the exercise of that authority. For example, many architectural control provisions require board to take action within a set period of time. Some require that the decision-makers visit the lot or review specific submissions prior to rendering a decision. The failure to follow proper procedures could invalidate an otherwise proper action.

6. Have your governing documents reviewed for compliance with applicable law. Following your governing documents is the prudent action except when those documents conflict with applicable law. Having your governing documents reviewed periodically will allow your board to enforce them with confidence.

As always, please feel free to contact me with specific questions on this or any topic of interest to you regarding common interest associations.