HOA Rule never previously enforced

[Guest David]

In our Documents there is a homeowner requirement that over the years has not been enforced.  Is there any reason why it can't be enforced now ?

[Joshua Katz]

None that I know of. There might be an equitable or "fairness" argument to be made, but the rules is the rules.

[Gary Novosielski]

On 6/14/2023 at 1:54 PM, Guest David said:

In our Documents there is a homeowner requirement that over the years has not been enforced.  Is there any reason why it can't be enforced now ?

Probably not, but I wouldn't say for certain, even with all that background information. 🙂

[puzzling]

It really depends on the rule.

As this is more a legal than a parliamentary question.

Have a look at the website of the home owners protection bureau, they have much more legal knowledge than we here

[Joshua Katz]

On 6/15/2023 at 6:24 AM, puzzling said:

It really depends on the rule.

 

How so?

On 6/15/2023 at 6:24 AM, puzzling said:

As this is more a legal than a parliamentary question.

 

Well, one can certainly ask it as a legal question, but it seems to me one can also ask it as a parliamentary question. If the answers differ, it would be smart to do the legal thing.

[puzzling]

On 6/15/2023 at 1:03 PM, Joshua Katz said:

How so?

Some bylaws rules are against state or even federal law.

A couple of years ago there was a cemetery that had a rule (from.the 1830s) that only white people could buy a grave there. That rule coild not be followed at all. (In the 2010s)

Riles like that.

[Gary Novosielski]

That's the first time I've heard a cemetery referred to as a deliberative assembly. It's arguably an assembly, but the amount of deliberation that occurs is negligible.

[Joshua Katz]

On 6/15/2023 at 8:59 AM, puzzling said:

Some bylaws rules are against state or even federal law.

 

Well, a few things. First, it may well be *illegal* to follow a bylaw, but if it is not procedural (your example isn't), it isn't prohibited from a parliamentary perspective. It's something the organization can do, but will get in trouble for.

Second, such bylaws are either illegal when adopted, or when some law comes into effect. They aren't unenforceable through disuse.

[Josh Martin]

On 6/15/2023 at 3:50 PM, Gary Novosielski said:

That's the first time I've heard a cemetery referred to as a deliberative assembly. It's arguably an assembly, but the amount of deliberation that occurs is negligible.

Yes, certainly the cemetery itself is not an assembly, but presumably the cemetery is managed by some sort of organization, which may well be governed by a board.

On 6/15/2023 at 8:59 AM, puzzling said:

A couple of years ago there was a cemetery that had a rule (from.the 1830s) that only white people could buy a grave there. That rule coild not be followed at all. (In the 2010s)

Yes, but what does this wild speculation have to do with the question that was asked?

Certainly, if a rule conflicts with applicable law, then the rule cannot be followed (although that is a legal issue, not a parliamentary one). But the question which was asked was whether a rule cannot be enforced on the grounds that it has not been enforced previously. One imagines that if the reason the rule was not enforced previously was because it conflicted with applicable law, the OP would have said so. Rather, I understand the situation in the present case is that the rule has not been enforced because the organization has been lax in enforcement, or perhaps because they completely forgot that the rule existed.

As a parliamentary matter, the society can (and in fact, must) begin enforcing its rules as they exist, unless and until those rules are amended, notwithstanding that the society has failed to do so previously. Certainly, there may well also be legal, philosophical, and practical concerns, and the society will have to determine the best path forward, but that is all beyond the scope of RONR and this forum.