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Subject: Declaration provision not legal
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Author Messages
DanN3
(Florida)

Posts:17


04/08/2017 5:34 AM  
Board attorney finds that a parking provision in the Declaration violates state of Fla Fire Code. Can the board of Dirs do the necessary fix to the Declaration alone or does the membership still have to vote on the fix?
JohnC46
(South Carolina)

Posts:6437


04/08/2017 6:41 AM  
Dan

Typically when your docs are in conflict with laws, the law overrides. It might be easier to note such in some way rather than take the time and effort to change the docs.
DanN3
(Florida)

Posts:17


04/08/2017 8:31 AM  
Agree on the override but often owners especially new ones do not know to check all other governing sources. Sometime owners selling forget to mention known overrides. We think it best just amend the Declaration and record it so the issue is can only the board do so or does it require membership approval, in a case like this.
GenoS
(Florida)

Posts:1057


04/08/2017 11:55 AM  
Your declaration itself should spell this out. I was just looking at mine and there is one exception to the normal requirement that homeowners must vote to approve proposed amendments: Certain provisions of the declaration may be amended with only a majority vote of the board. These "certain provisions" are those regarding insurance and its availability.

Your declaration should have a section that lays out the requirements for amendments.
DanN3
(Florida)

Posts:17


04/08/2017 2:00 PM  
Our Declaration does. It outlines a membership vote for Doc changes. It just seemed like a legal exception could be for when a provision is deemed illegal that a fast path be available.
GenoS
(Florida)

Posts:1057


04/08/2017 4:39 PM  
Not that I'm aware of. We have a list of 10 concerns and issues our attorneys drew up for us in 2010 after the HOA availed itself of their "Document Review" product. Most of the issues revolve around inconsistencies between our 28-year old docs and laws and regulations that have changed since then. Technically we don't have to amend our docs because the law prevails regardless. But we're doing it anyway because (a) we haven't done any substantial revisions for 25 years, (b) there are a lot of new owners in the last 5 years and they tend to be confused enough without our documents adding to the confusion, and (c) there are an additional 4 large-ish amendments we'd like to get done. Might as well get it all done in one fell swoop. I'm on the "document revision" committee and it has been a lot of work.
JanetB2
(Colorado)

Posts:2665


04/08/2017 9:35 PM  
Posted By DanN3 on 04/08/2017 5:34 AM
Board attorney finds that a parking provision in the Declaration violates state of Fla Fire Code. Can the board of Dirs do the necessary fix to the Declaration alone or does the membership still have to vote on the fix?


The State Law will supersede and override even if documents are not amended. To attach Amended CCR's to homeowner's property via filing with your County Records will require proper vote following proper procedures. However, this is why in many instances the State Law will supersede and those type items generally many owners do not have issue of changing so getting required vote is easier.
DanN3
(Florida)

Posts:17


04/09/2017 4:45 AM  
Although I agree that in many cases state, County and Federal law trumps the governing documents. when it is discovered that a trumping law nullifies or eliminates a provision of the governing documents, that provision should be made in compliance or eliminated. In our case, being a resort, 80% of the units are not owner occupied. There is a high threshold that has to be met to change the governing docs. In our case there is an added feature. Although the Association has been turned over to the owners in 2004 the docs say that no Doc change can be made without the expressed written consent of the developer. Also the developer has title to more than 20% of the units. The developer's absence makes it thus impossible for the docs to ever change. So the hope is that the Board alone could change the docs.

If there is no other avenue by which we can change our docs then we must change from saying to owners, prospective buyers and renters that the governing documents, Rules & Regulations, Community Standards are to be followed by adding, as the last word,............. 'maybe'.

Thanks for you input.
JeffT2
(Iowa)

Posts:274


04/09/2017 11:19 AM  
Ask your attorney if the board can create a written statement about it, and record the statement with the county Recorder. Also, put a note about it in your Rules and Regulations.
DanN3
(Florida)

Posts:17


04/09/2017 11:36 AM  
Good ideas. Thanks for your input.
DouglasK1
(Florida)

Posts:688


04/10/2017 9:16 AM  
While it is not a bad idea to update docs to be in compliance with law, many associations can't or don't bother to do it. From what I've read there are still associations with CCRs written in the 60's and earlier that prohibit selling based on race. That has been illegal since the 70's.
KerryL1
(California)

Posts:3703


04/10/2017 2:30 PM  
We, too, have proceeded along the lines that Jeff suggests.
GenoS
(Florida)

Posts:1057


04/10/2017 6:22 PM  
Posted By DouglasK1 on 04/10/2017 9:16 AM
While it is not a bad idea to update docs to be in compliance with law, many associations can't or don't bother to do it. From what I've read there are still associations with CCRs written in the 60's and earlier that prohibit selling based on race. That has been illegal since the 70's.

There's an HOA in New York that until very recently enforced a rule that lots could only be sold to buyers of German descent. They claimed that efforts were made over the years to amend the bylaws but those efforts always failed because the owners liked the restriction. A couple sued when they were told they couldn't sell to just anyone. It was only settled about a year ago. The couple got $175,000 and the association agreed to change their bylaws. I wish there were more details about the case but I can't find any. Sounds like they got off cheap.
JanetB2
(Colorado)

Posts:2665


04/11/2017 9:38 PM  
Posted By DanN3 on 04/09/2017 4:45 AM
Although I agree that in many cases state, County and Federal law trumps the governing documents. when it is discovered that a trumping law nullifies or eliminates a provision of the governing documents, that provision should be made in compliance or eliminated. In our case, being a resort, 80% of the units are not owner occupied. There is a high threshold that has to be met to change the governing docs. In our case there is an added feature. Although the Association has been turned over to the owners in 2004 the docs say that no Doc change can be made without the expressed written consent of the developer. Also the developer has title to more than 20% of the units. The developer's absence makes it thus impossible for the docs to ever change. So the hope is that the Board alone could change the docs.

If there is no other avenue by which we can change our docs then we must change from saying to owners, prospective buyers and renters that the governing documents, Rules & Regulations, Community Standards are to be followed by adding, as the last word,............. 'maybe'.

Thanks for you input.


I contend above bold statement is incorrect:

720.3075 Prohibited clauses in association documents.—
(1) It is declared that the public policy of this state prohibits the inclusion or enforcement of certain types of clauses in homeowners’ association documents, including declaration of covenants, articles of incorporation, bylaws, or any other document of the association which binds members of the association, which either have the effect of or provide that:
(a) A developer has the unilateral ability and right to make changes to the homeowners’ association documents after the transition of homeowners’ association control in a community from the developer to the nondeveloper members, as set forth in s. 720.307, has occurred.
(b) A homeowners’ association is prohibited or restricted from filing a lawsuit against the developer, or the homeowners’ association is otherwise effectively prohibited or restricted from bringing a lawsuit against the developer.
(c) After the transition of homeowners’ association control in a community from the developer to the nondeveloper members, as set forth in s. 720.307, has occurred, a developer is entitled to cast votes in an amount that exceeds one vote per residential lot.
Such clauses are declared null and void as against the public policy of this state.

Also, according to Section (c) above after turnover the Developer would have only One (1) vote per residential lot or in essence only 20% of the votes. If the other owners carry a larger percentage then they win .

The BOD alone cannot change the CCR's. Those are documents attached to everyone's Property Titles and therefore requires majority as stated in your CCR's or State Law to change.
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