3.05 Governmental Responsibilities of the Council of Co-owners

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

3.05 Governmental Responsibilities of the Council of Co-Owners

The council's governmental responsibilities³² can be broadly described as rule promulgation and rule enforcement. Anyone familiar with condominiums is well aware that these issues can and do produce fireworks. This is so because the adoption and enforcement of rules often come about because of noisy neighbors, annoying pets, or disputes about maintenance or the appearance of the property. Sides have been taken: quiet retirees versus noisy children; pet owners against non-pet owners; renters versus owners. Emotions run high and the governing board is caught in the middle. Frequently, therefore, it is in this area that the governing board needs the most guidance, although it is usually business matters that bring the condominium leaders to legal counsel. Unfortunately, the SCHPA offers little direction in these matters. What follows is a summary of guidelines culled from cases across the country that should aid the governing board in carrying out its governmental role.

(1) Whether enforcing³³ or adopting rules, the governing board should have a clear procedure to follow, and should follow it.³⁴

(2) Board decisions must be clear and consistent with previous ones. Rules should not be enforced selectively as such action has been uniformly prohibited by courts.³⁵ Generally, courts have applied a standard of reasonableness to condominium action.³⁶ Actions that are clear and consistent are more likely to be considered reasonable.
(3) There are some instances where the board is given discretion to, upon request of an apartment owner, grant or deny some activity. In those instances one court has said the activity must be permitted unless it is "...demonstrably antagonistic to the legitimate objectives of the condominium association, i.e., the health, happiness and peace of mind of the individual unit owners."³⁷
(4) The rules of the governing board should be in writing. When they are enforced the board should be careful to base its decisions on an intent to enforce and implement the existing rule, not to formulate new policy or enforce an unwritten rule.³⁸
(5) The governing board should avoid retroactive application of rules.³⁹
(6) The council itself must follow the master deed and bylaws.⁴⁰

Finally, the job of governance will be considerably easier if the governing board endeavors to keep unit owners informed of its activities and intentions and invites participation.

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Notes:

^[32] See Rosenberry, "Actions of Community Association Boards: When...