By Betsy Barbieux, CAM, CFCAM, CMCA / Published November 2023
Turn on the television and you’ll likely see a national news program. If you listen long enough, you may hear the phrase “rule of law,” followed by “we are a constitutional republic,” and our constitution is the law of the land.
But what does “rule of law” mean? Is it the opposite of “rule of man”? And why or how does any of this relate to community associations?
Go back to King John of England and the Magna Carta (1215), Article 39, which though short lived said that King John could not arbitrarily take away the life, liberty, or property of his subjects. The fate of a person should not be in the hands of one person (the rule of man) but in accordance with natural laws that even the king was not above.
On November 11, 1620, the Mayflower Compact was drafted by the Pilgrims before they disembarked from the ship. They realized the need to agree on a form of self-governance, which for them was based on the people being moral people (don’t lie, don’t cheat, don’t steal, don’t swear), with the added statement “unto which we promise all due submission and obedience.”
Then on July 4, 1776, the Continental Congress announced its separation of the 13 colonies from Great Britian and documented its intent in the Declaration of Independence, which says, “Governments are instituted among men, deriving their just powers from the consent of the governed.” Like the Mayflower Compact, the Declaration of Independence was based on people being moral people.
On September 17, 1787, the Constitution was signed, and by July 1789 it had been ratified by all 13 states. The U. S. Constitution became the law of the land, with its senators and representatives to serve at the pleasure of the people.
Contained within the Oath of Allegiance to the United States are these phrases: “that I will support and defend the Constitution and laws of the United States of America” and “that I take this obligation freely without any mental reservation or purpose of evasion.”
So, woven throughout our national history is the “rule of law” as opposed to the “rule of man,” such as a king or dictator. This “rule of law” has made its way into our community associations. Here’s how.
Each community has a set of documents (declaration, proprietary lease, articles of incorporation, and bylaws) that is the law of the land. Board members are elected by the people to serve at the pleasure of the people. The exception is that in community associations, the board members do not serve a constituency, but serve the governing documents and statutes.
By signing closing documents for the purchase of a condominium, cooperative, or homeowners’ association, every owner has “promised all due submission and obedience” and that they will “support and defend” the restrictive covenants spelled out in the governing documents. And they have entered this “obligation freely.” These restrictive covenants give the owners certain rights and place some restrictions on the use of their property. Some owners understand that commitment to the restrictive covenants; others don’t.
Ask a manager, and he’ll tell you about willful owners and residents who defy the restrictive covenants on a regular basis despite their commitment to comply. Since boards and managers can’t send anyone to jail or put them in stocks, they are left to spend a lot of time and money forcing voluntary compliance.
But what about board members? Does the “rule of law” apply to them? It does, of course, but in a different way. The documents and statutes presume board members have a fiduciary relationship to the owners and give board members the responsibility of maintaining the common areas, buildings and grounds, and tangible personal property. By accepting the role as a board member, each has agreed to this fiduciary duty.
However, recent history has revealed board members who failed to perform scheduled maintenance or take care of emergency maintenance or just kicked the can down the road to let somebody else handle it. Sometimes it’s not for a lack of funds; they just don’t want to do the hard work and make difficult decisions.
It is very hard for some board members to resist the urge to make popular decisions instead of the right decision. It is hard to increase the reserve funding or monthly assessment when board members know it will significantly impact their fixed-income neighbors. But with the new condominium and cooperative laws in place for buildings three-stories and higher, board members will no longer be able to kick the can down the road. The buck will stop with them.
And thinking into the future, what about “all due submission and obedience” when Gen X, Millennials (Y), and Gen Z move into community associations? We already know their attitude toward authority is different, so what will be their attitude toward “rule of law” in a community association?
Few of them have grown up in the same societal or educational environment as the traditionalists/builders and Baby Boomers. They have different morals, loyalties, priorities, and attitudes toward authority and rules.
Some generation experts say that Gen X wants rules changed and think that change is better. Wait until they realize how difficult it is to change the restrictions in the governing documents.
Some say that the Millennials/Gen Y would rather be in charge and want you to be flexible. It won’t take them long to realize that governing documents aren’t very flexible.
Others say Gen Z is used to being independent and self-directed. Community living where the houses and lawns look the same may not suit them. Being told to keep their garage doors shut or take the decorations off the front doors may be hard for them to
I wonder what “rule of law” will look like in our community associations 10 years from now?
Betsy Barbieux, CAM, CFCAM, CMCA
Owner, Florida CAM Schools
Betsy Barbieux, CAM, CFCAM, CMCA, guides managers, board members, and service providers in handling daily operations of their communities while dealing with different communication styles, difficult personalities, and conflict. Effective communication and efficient management are her goals. Since 1999 Betsy has educated thousands of managers, directors, and service providers. She is your trainer for life! Betsy is the author of Boardmanship, a columnist in the Florida Community Association Journal, and a former member of the Regulatory Council for Community Association Managers. Subscribe to CAM MattersTM at www.youtube.com/c/cammatters. For more information, contact Betsy@FloridaCAMSchools.com, call 352-326-8365, or visit www.FloridaCAMSchools.com.