Excerpt from Be Reasonable! © 1998 Community Associations Institute
Introduction
"We've spent years hammering directors on how they could be held personally liable if they failed to enforce the CC&Rs. We neglected to teach them about reasonableness and flexibility." —Brent Herrington, PCAM
On a June day in 1991, Helen Garrett spotted a notice above the mailboxes at her Santa Ana, California condominium. The notice accused Garrett, a 51-year-old financial consultant and grandmother, of "parking in [a] circular driveway ... kissing and doing bad things for over one hour." Her condominium association, which posted the notice, promised to fine her if it caught her doing "bad things" in the future.
Garrett was furious. Her kiss with "a very respected businessman" was brief. People began calling her "hot lips," she said, and asked her what bad things she was doing. The story quickly became national news, appearing in the Los Angeles Times and USA Today. Garrett hired a high-profile attorney. She threatened to sue for defamation and emotional distress, and demanded a public apology. She received it only when the association learned the "violator" was not Garrett but a 17-year-old girl and her boyfriend.
This is a textbook example of an unreasonable community association. The association's board of directors never passed a restriction against "kissing and doing bad things;" it never had the authority to peek into residents' cars. And even if such a restriction existed, it's so unreasonable—a kiss goodnight is hardly the association's business, let alone a threat to property values—that no court would support it.
The board's enforcement procedures were equally unreasonable. Rather than notifying Garrett of the violation in private, or issuing a warning, or offering due process, the association chose public humiliation, posting the violation notice where every resident could see it. And how did it intend to enforce the restriction? Would the condo kiss police fine her $50 for every smooch? Would they run lipstick tests on every man who exited the community? And what, exactly, is the legal definition of "bad thing"?
In this case, the "bad thing" was a bad restriction—and equally bad enforcement procedures.
Harassing residents is not why community associations have restrictions. Community associations enforce restrictions to ensure a high quality of life for residents and to preserve property values. To prevent homeowners from painting their houses pink or storing washing machines in their yards. The problem is that many associations—as in the case of Helen Garrett—are overzealous. Or inflexible. They overstep their legal bounds of authority. They write restrictions that are vague and imprecise; that are too broad and too extreme. Restrictions that serve no purpose in maintaining property values. Restrictions that are outdated, illogical, and unreasonable.
Enforcing restrictions doesn't have to result in unnecessary lawsuits and public relations nightmares. This thesis will offer strategies for writing reasonable restrictions, and identifying those that are unreasonable. It will also offer suggestions on how to reasonably enforce restrictions.
