Or....can they? Answer: They actually can...if they follow proper procedures.
Let's review a Community Association's hierarchy of Governing Documents to see where Rules and Regulations are in the hierarchy and what the Board's power are in relation to Rules and Regulations.
NOTE: Prior to the Governing Documents of each Association, all Associations must follow Federal, State, and Local Laws and Regulations.
Hierarchy of Governing Documents:
Recorded Map, plan, or plat. This shows the location of the community, each lot, and unit.
Declaration, CC&R's or Master Deed. This document is recorded in the county courthouse and is a running part of the deed of every Homeowner. It will explain what is the responsibility of maintenance, repair, and replacement for the Association as a Common expense, define limited common expenses, and define what is considered part of a unit (and the responsibility of the unit owner for maintenance, repair, and replacement). It cannot be altered or changed by a Board without a vote of the community and re-recording of the document in the county courthouse. Often, this document may contain an initial set of rules and regulations. These rules cannot be changed, but they can be made more restrictive. For example, the Declaration may say you can have dogs. And a rule can be made saying you can have two dogs. But a rule cannot be made saying dogs are not permitted without amending the document, receiving a vote of the community, and recording the amendment. In a Cooperative, this document would be called a Proprietary Lease or an Occupancy agreement.
Articles of Incorporation. Depending on state law, not all states require that an Association is incorporated, so this document may or may not exist.
Bylaws or Code of Regulations. The Bylaws explains how the community should operate, for the administration and management of the Association. The Bylaws often provide the Board their charge and powers in administering the community. This document is typically not recorded but still requires a vote of the community to make changes to the document or pass an amendment to the document. The Board cannot change the Bylaws or Code of Regulations by Board vote. Communities built prior to the Uniform Condominium Act typically have a Code of Regulations, not a set of Bylaws. Bylaws cannot contradict documents higher in the hierarchy.
Board Resolutions. Every Rule and Regulation is a Resolution of the Board, even if it was not written in a "formal" resolution format. Board Resolutions are sometimes called policies, administrative procedures, administrative policies, or Rules and Regulations. Board Resolutions (and all of their synonyms) are created by the Board, can be amended by the Board, overturned by the Board, and passed by the Board. When a rule is changed, amended, deleted, or created, the Board has to provide proper notice, in accordance with the notice procedures in the Bylaws (or Code of Regulations) to all Homeowners of Record. Board Resolutions cannot contradict documents higher in the hierarchy. Board of Directors should also consider that if they have a rule, it should be necessary, reasonable, and enforceable. A rule should not exist if it is not going to be enforced.
Summary: The Board is elected by the Homeowners to serve the Homeowners and the best interest of all Homeowners. As a part of their charge as a Board member, they are responsible for reviewing existing rules to ensure that they are fair to all, and continue to review ongoing changes in the community. This could mean that rules need to be changed, upgraded, deleted, or created. As long as the Board is following proper procedure and ensuring that the rules do not contradict any laws, or documents in the hierarchy they have the right to pass the new rule. However, Board of Directors should think twice to ensure that the rule is necessary, fair, and able to be enforced consistently.
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