Changing the Rules
Question: Can a new board rescind or revise a policy adopted by a previous board?
Answer: As long as you’re talking about “garden variety rules” enacted by the board, and not bylaws or covenants, which must be approved by owners, the answer is yes, Ellen Shapiro, a partner in Goodman, Shapiro & Lombardi, LLC, responds. But the critical question, she says, is not whether the new board can revise existing rules, but whether it should. “Not whether the board has the authority to revise the rules, but whether that is a good thing to do?”
If the new board members were elected because they promised to eliminate policies owners didn’t like, Shapiro says, “they should do what they promised to do. Otherwise, their credibility with owners, and their ability to govern, will be undermined.”
But absent a political justification for the change, Shapiro says, new board members should look at the rules as they would had they been in office for years. “They should consider whether changes are needed and why.”
If the rules haven’t been reviewed in a long time, if some rules are obsolete, if they aren’t being enforced (because owners are ignoring them) or if the community’s demographics and its concerns have changed – all are good reasons for revising or eliminating them, Shapiro says. A desire to erase anything with the old board’s stamp on it, on the other hand, is not.
Targeting a rule because it applies negatively to one or more board members also would not qualify as “good governance” in her view. “That’s not what being on the board is about,” she says. “The board has a fiduciary duty to protect the interests of the association as a whole,” she emphasizes. “Owners who are looking to pursue a personal agenda shouldn’t have run for the board in the first place.”