Maybe it starts with complaints about guest parking, or too much noise from next door, or neighbors smoking. Whatever the reason, the condominium rules and regulations— also known as the CR&Rs—in your community probably need updating.

CR&Rs Are Part of the Bylaws

"Condo bylaws define the powers given to the trustees. They spell out who is responsible for what," says Frank Flynn, principal in the law firm Downing & Flynn in Boston. "The CR&Rs are then defined within the bylaw and may further describe the conduct and responsibilities of board members and tenants. In a typical model, the documents may state, 'The Rules and Regulations and Standards may be modified, repealed, or amended at any time by a resolution of the Board of Directors when deemed necessary in the best interest of unit owners/residents and the community.'"

Flynn explains that procedures for making any changes to the bylaw are contained within that bylaw. "The process for changing bylaws may require official notification of all parties, including trustees and unit owners, and voting by a specific percentage of unit owners. When the change is adopted," he advises, "it must be recorded at the Registry of Deeds—at least in Massachusetts."

"The rules and regs should always be recorded as part of the bylaws," states Flynn. "Even though a majority of trustees [alone] can change the rules and regs, these rules are not enforceable if they are not recorded." His recommendation stems from a 1975 Massachusetts court decision in the case of Johnson v. Keith.

New or Old, They All Need Updates

Things would be a lot easier for everyone if CR&Rs, like the Ten Commandments, were actually set in stone, but the reality is, "Regulations get changed constantly," says Robert Marcus, principal of the management firm Robert Marcus Real Estate in Newton, Massachusetts. The genesis of the change may be lifestyle trends, or economic factors such as insurance premiums, or turnover on the board of directors, but "you have to change [CR&Rs] as issues come up."

Although rules often need a going-over, Marcus adds that sometimes it's not a regulation that needs changing but an issue raised by an individual unit owner that needs to be addressed. For instance, he notes, secondhand smoke has become a topic that boards are being forced to consider. Noise, he says, remains a persistent issue. If compromise among neighbors does not solve the conflict, a change in the CR&Rs may be in order to resolve the issue.

To solve a smoke problem, a community might first prohibit smoking in common areas. But if smoke from one unit is infiltrating neighboring units, the regulations must include clear definitions and limits, and the steps that can be taken to minimize or eliminate the source of complaints.

Sometimes a particular update in regulations would benefit any community, and Marcus says he may "warn other boards that something may be coming down the pike" that might require a rules change in their community as well. Too often, however, boards are loathe to look at potential problems until the problem arrives at their own doorsteps, he admits.

While it might seem logical that older communities would have more antiquated rules that need more updating, Marcus says, the reality is that "it depends [more] on the profile of the tenants or owners in the community. The age of the association doesn't matter." As an example, he notes, "We had an association that was just one year old, and they received complaints about residents using the [common] laundry facilities late at night and annoying neighbors. The board realized they needed to address hours of operation in the laundry area [in the rules]."

In a brand new condominium complex, there's an opportunity to take a fresh look at how the fledgling community wants things to work. "The developer," says Marcus, "will sit down with the new board of directors and a standard set of CR&Rs. They will then make changes to suit their own situation. [Association boards] are always tailoring these things. New rules are constantly born out of necessity."

Simple Housekeeping Can Raise Flags

To keep rules current, advises attorney Michael E. Malamut, of Dedham, Massachusetts, "condos should have a rules review every three to five years, as housekeeping."

But the condo pro notes that even when associations are diligent and conduct regular reviews, it's not necessarily smooth sailing. "The few [boards] that have actually done general revisions often get in trouble because someone of a suspicious nature may view any change as suspect," he points out.

He cautions condominiums that ignoring updates can be a mistake. "Many of the older condos, say 30 and 40 years old, have not changed their bylaws, and [some things] are no longer valid. Legislative changes aren't being adopted," Malamut warns. As an example, in the early 1990s Massachusetts state law changed to allow condo associations to take more control in recouping losses when unit owners defaulted on their condo fees. "However," he adds, "Many associations never adopted [the law] into their bylaws and couldn't take advantage of it."

How to Bring About the Best Results

Many communities and the managers who look after them dread the updating process, which is often fraught with negative emotions. "It's never a fun process," admits Tracey Madden, senior property manager with Harvard Management Solutions, Inc., of Merrimack, New Hampshire. But industry professionals offer recommendations to make the process less onerous and more likely to bring about successful results for the community.

Madden advocates a methodical approach to updates: "I usually start out with a template from our legal counsel and then we [with the board] put in our particular needs—anything from regulations on pets to parking." A crucial step when updating regulations, she says, is to engage unit owners in the process as soon as possible. Even though most condo bylaws don't require it, Madden feels that feedback from residents is important because, "They'll catch things [the board might miss]. Once, when crafting rules for parking, we forgot about visitor parking passes. A resident pointed it out. We had to go back and redo the section."

Although regular updates for CR&Rs may be needed, Madden notes, they are often perceived as low priority by communities that may be preoccupied with other issues, including overdue or underfunded capital improvements. "People are battling with bigger issues," she notes, that seem more compelling than parking regulations. But even if trustees are preoccupied, Madden notes that time often brings change by default, particularly in condominiums, where "as board directors change every few years, policies tend to change."

To promote engagement in the process, Madden recommends forming committees to address updates. "It's a way for residents to take ownership," she says, "to have some responsibility."

Madden's company takes a specific-is-better approach to rules. "Our wish list has always been to make sure that associations have a specific policy to address the hot topics such as parking, pets, and noise," she says. "Most condo docs are not specific enough." The problem is compounded by real estate marketing, especially on the Internet, where legal documents such as bylaws, CR&Rs, and deed restrictions are drastically reduced, or breezed over—or ignored completely. "The docs are often abbreviated to market properties more easily," she says.

Some of the contemporary issues Madden has faced in the recent past have included placement of satellite dishes and equipment. In this case, a condominium is obliged to follow FCC guidelines, which prevent anyone from banning the hardware but do allow their placement to be regulated. Many communities have devised rules to accommodate the equipment, designating specific areas for installation while avoiding much of the common area.

Madden warns that many things cannot be prohibited across the board, much as some unit owners or trustees might like to do just that. For instance, she says, "You can't just ban motorcycles. Motorcycles are street-legal vehicles and they may be a unit owner's only means of transportation."

When negotiating sensitive issues, it pays to take a gentle approach. In Madden's experience, "Some boards still want to take on the fight and ignore legal counsel or the advice of their management company." That's when community regulatory issues make their way to court—and into newspapers.

Echoing the idea that it's not "a fun process," one attorney who helps craft CC&Rs quips that "It's very much like making sausage."

Attorney Mark E. Connelly, of Concord, New Hampshire, would prefer to take the mess of sausage ingredients and condense them into a nice, neat casing. He insists that CR&Rs "must be clear, concise, and enforceable."

When updating regulations, he states, "I believe in the Moses theory: 'Thou Shall Not' do anything without the prior, written consent of the board." This approach provides flexibility and avoids outright prohibitions that may be illegal. For instance, Mr. Connelly says, "To say 'no dogs allowed' is discriminatory and in violation of the Fair Housing Act," because service animals are always allowed.

Likewise, consequences for infractions to CR&Rs must be clear and consistently enforced. "People make up all these [condo] rules," he continues, "with no fines or assessments set up."

Another important aspect of rule making, he adds, is providing an appeal process. "People need an opportunity to be heard."

Connelly relates that in his practice, the hot-button topics these days are "pets, parking, and tenants." He recommends that pet rules require owners to license their pets and to carry liability insurance. He also notes that a limit on the number of pets can be specified.

When unit owners rent to tenants, an irksome fact, says Connelly, is that "tenants are never provided with copies of the CR&Rs." This is a problem because without the rules in hand, tenants may not be aware of community prohibitions against, for instance, holiday decorations. It's also a problem for owners, says Connelly, who "must be notified that they are responsible for their tenants and be advised of the consequences of repeated violations." The rules may also stipulate language that must be included in a lease or rental agreement, including a warning about eviction.

When it comes to parking allotments, most communities come up short. The chronic shortfalls are the norm, notes Connelly, because condo developers rarely provide more than two spaces per unit. Because of that unfortunate reality, he says, "You have to have a rule giving [the association] the capability of towing."

Connelly also takes an inclusive approach to informing unit owners of upcoming changes. "I recommend that any updated CR&Rs be distributed to all unit owners, along with real estate agents," he says. But there's one more step to complete the process: "They should be recorded in the Registry of Deeds."

Connelly underscores the importance of the information for buyers and unit owners alike: "The problem [for the novice condo buyer] is that Realtors are selling 'sticks and bricks,' but what you're really buying is an association... with its rules and regulations."

When is comes to CR&Rs, the challenge for association directors, and managers is multiple: keeping everybody involved with ever-changing regulations, reading them, understanding them, and enforcing them with fairness.