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Subject: Does FL Condo Act require Rules & Regs to be included in the bylaws?
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AmyJ3
(Florida)

Posts:18


11/26/2018 2:31 AM  
An interesting issue came up last week re Rules & Regs.

The FL Condo Act Sec 718.112 has three subsections:
(1) GENERALLY —(a) The operation of the association shall be governed by the articles of incorporation if the association is incorporated, and the bylaws of the association, which shall be included as exhibits to the recorded declaration...
(2) REQUIRED PROVISIONS. 10+ pages of all sorts of stuff on administration, budget, a few specific rules re recroding of meetings and notices but nothing re house Rules & Regs.
(3) OPTIONAL PROVISIONS.—The bylaws as originally recorded or as amended under the procedures provided therein may provide for the following:
(a) A method of adopting and amending administrative rules and regulations governing the details of the operation and use of the common elements.

There are a zillion things that are optional and statutes rarely try to cover that zillion as it is understood that if not prohibited it is allowed. Yes it does say "PROVISIONAL" and it does say the bylawys "may provide". Is this provision not so optional in the sense that, an association is not REQUIRED to promulgate Rules & Regs, but if the association chooses to promulgate Rules & Regs, the place to do so is ONLY in the bylaws?

Why else would the Condo Act pick on this one optional provision and lead with it but leave out the zillion other optional things? Like having to hug you children every day or tell your boss she is always right...

This prevents boards to unilaterally set Rules & Regs by the seat of their pants. Bylaws have to be amended by at least 2/3 voting interests approval. Sec. 718.112(2)(h)1. I have seen some bylaws require as high a 85% voting interests.

Any lawyers out there, I'd appreciate the input?

Thanks in advance
GenoS
(Florida)

Posts:2518


11/26/2018 3:42 AM  
Posted By AmyJ3 on 11/26/2018 2:31 AM
An interesting issue came up last week re Rules & Regs.

The FL Condo Act Sec 718.112 has three subsections:
(1) GENERALLY —(a) The operation of the association shall be governed by the articles of incorporation if the association is incorporated, and the bylaws of the association, which shall be included as exhibits to the recorded declaration...
(2) REQUIRED PROVISIONS. 10+ pages of all sorts of stuff on administration, budget, a few specific rules re recroding of meetings and notices but nothing re house Rules & Regs.
(3) OPTIONAL PROVISIONS.—The bylaws as originally recorded or as amended under the procedures provided therein may provide for the following:
(a) A method of adopting and amending administrative rules and regulations governing the details of the operation and use of the common elements.

There are a zillion things that are optional and statutes rarely try to cover that zillion as it is understood that if not prohibited it is allowed. Yes it does say "PROVISIONAL" and it does say the bylawys "may provide". Is this provision not so optional in the sense that, an association is not REQUIRED to promulgate Rules & Regs, but if the association chooses to promulgate Rules & Regs, the place to do so is ONLY in the bylaws?

Why else would the Condo Act pick on this one optional provision and lead with it but leave out the zillion other optional things? Like having to hug you children every day or tell your boss she is always right...

This prevents boards to unilaterally set Rules & Regs by the seat of their pants. Bylaws have to be amended by at least 2/3 voting interests approval. Sec. 718.112(2)(h)1. I have seen some bylaws require as high a 85% voting interests.

Any lawyers out there, I'd appreciate the input?

Thanks in advance

Welcome to HOATalk, Amy. I'm not a lawyer but I've read Fla. Stat. 720 and 718 many times and a great deal of online legal blogs, articles and discussions about FL condo and HOA stautes, so I'll chime in.

I think the answers you seem to want miss the points made in the statute completely. An optional provision in the Bylaws may provide for a method of adopting Rules & Regulations. Nothing says said adopted Rules & Regulations have to be IN the Bylaws. Also, FS 718.111(12) lists the official records of a condo association and the Rules are listed quite apart and separately from the Bylaws. It would be a tough to argue that the Rules must be stated only in the Bylaws.

Boards already cannot enact Rules & Regulations by the seats of their pants. The Rules & Rgulations are at the bottom of the hierarchy of governing documents and may not contradict anything above them in the pecking order.

Also, the Bylaws only require at least a 2/3 voting interests approvel IF the bylaws fail to provide a different method or fraction of required voter approval to amend. What difference does it make what percentage of owners have to approve an amendment to the Bylaws when your concern seems to be the Rules & Regulations?

The FL condo and HOA statutes are riddled with ambiguity and random inconsistencies. Nothing unusual there.

I think it's pretty clear and supported by numerous DBPR and court decisions (again, IANAL so I'm not sure of this) that Boards can adopt, as permitted in the Bylaws, Rules & Regulations that exist separately from the Bylaws. Asking about a zillion other optional things borders on frivilous since the legislature can classify their statutory provisions any way it wants.
AmyJ3
(Florida)

Posts:18


11/26/2018 4:56 AM  
Posted By GenoS on 11/26/2018 3:42 AM

Welcome to HOATalk, Amy. I'm not a lawyer but I've read Fla. Stat. 720 and 718 many times and a great deal of online legal blogs, articles and discussions about FL condo and HOA stautes, so I'll chime in.

Boards already cannot enact Rules & Regulations by the seats of their pants. The Rules & Rgulations are at the bottom of the hierarchy of governing documents and may not contradict anything above them in the pecking order.
...

The FL condo and HOA statutes are riddled with ambiguity and random inconsistencies. Nothing unusual there.

Asking about a zillion other optional things borders on frivilous since the legislature can classify their statutory provisions any way it wants.



The fact that Rules & Regs are at the bottom matters only if there is a conflict and a court has to resolve it by giving more weight to docs higher in the hierarchy. The reality is that there are tons of communities with bylaws that are 50-60 yrs old belted out by the developer with no meaningful governance inside. So it makes no difference that the Rules & Regs are lowest on the totem pole if they become the only form of governance. That is exactly why I think that optional provision is there to strongly suggest that Rules & Regs be part of the Bylaws.

I am not asking for a zillion other options, they already are there. I just observed the statute does not bother with any of them but does bother with a strong suggestion that the Rules & Regs be promulgated exactly as a governing document even though the statute does not define them as such.

It's about statutory construction and one of the key cannons is that the interpretation must be in such a way that no provision be made meaningless. Well, if you take out that optional provision nothing changes in the effect of the statute. The right of an association to put is Rules & Regs into the bylaws does not diminish or decrease. So there must be a point why this provision was put in and not just put in and made the very first provision in the subsection. IANAL either. I just play one on TV.
AugustinD


Posts:1208


11/26/2018 8:09 AM  
Amy, it is truly so great that you are reading carefully the applicable statutes where you live. But sometimes parsing them requires a bit of experience. Geno is correct. When a HOA adds rules and regs, it does so under authority of either the Bylaws or Declaration. The rules and regs may not exceed restrictions already in the Bylaws and Declaration. This is why no vote to amend the Bylaws or Declaration is needed every time a board wants to impose a new rule or reg. It is exactly analogous to why various government agencies can take Congress-passed statutes and refine their meaning, and apply the statutes, via writing regulations for the Code of Federal Regulations. A regulation in the CFRs does not amend a statute (and so Congress need not approve every Regulation the agencies write); instead, the regulation clarifies the statute.

Occasionally a Regulation in the CFRs is found to be inconsistent with a federal statute, in which case the courts throw out the Regulation. The same goes for board-created rules and regs: If a rule or reg turns out to be inconsistent with a Bylaw or section of the Declaration, a court can throw out the rule or reg.

Also my opinion: With the advent of the internet, carefully read laypeople are often more knowledgeable than an attorney who is not specialized in the subject under discussion.
GeorgeS21
(Florida)

Posts:796


11/26/2018 8:53 AM  
From my reading, any R&Rs must relate back to the CC&Rs ... Bylaws are more broad "how to govern" ...there should be linkage in the CC&Rs to Rules and Regs ... if only in the Bylaws, it will be difficult to connect all the dots.
AmyJ3
(Florida)

Posts:18


12/05/2018 5:18 AM  
Posted By AugustinD on 11/26/2018 8:09 AM
Geno is correct. When a HOA adds rules and regs, it does so under authority of either the Bylaws or Declaration. The rules and regs may not exceed restrictions already in the Bylaws and Declaration.




AugustinD, this is exactly the problem I am talking about. At least 2 communities I know of, one under our management, where neither the Declaration nor the By-Laws give authority to the board to promulgate rules & regs. This is why I turned to the statute to see if the Condo Act grants such authority to the board. It does not either.

It appears the only remedy the Condo Act provides for this scenario is exactly this optional Sec 718.112 to put the rules & regs in the bylaws if the community wants to keep rogue boards from making up crazy rules. But it is clearly an optional provision.

So the problem remains. How else is the board to get authority to do rules & regs?

KerryL1
(California)

Posts:5950


12/05/2018 6:46 AM  
Agree with Geno & Augustine. The key word concerning bylaws is "method." They show the method by which all manner of HOA operations must be done. How elections must be held; how officers are chosen; how notices of meetings must be given. They do not include rules.

Rules are the activities that result from the HOW that's in the bylaws. In our HOA, and I believe this is common, the declaration (CC&Rs; covenants) give the "Association" the right to make rules.

This doesn't apply to you, Amy, but many think the word "bylaws means laws," i.e., rules. They are wrong.
AmyJ3
(Florida)

Posts:18


12/05/2018 7:14 AM  
Posted By KerryL1 on 12/05/2018 6:46 AM
In our HOA, and I believe this is common, the declaration (CC&Rs; covenants) give the "Association" the right to make rules.

This doesn't apply to you, Amy, but many think the word "bylaws means laws," i.e., rules. They are wrong.



Kerry,
First off, the association is not the board, it is the collection of all the owners.

You are right that the declaration usually provides the board the authority to set the association's rules & regs. But this does not answer my question when the declaration and bylaws fail to do so.

So my question remains: How else is the board to get authority to do rules & regs?

Amy
AmyJ3
(Florida)

Posts:18


12/05/2018 7:30 AM  
Posted By AmyJ3 on 12/05/2018 7:14 AM
Posted By KerryL1 on 12/05/2018 6:46 AM
many think the word "bylaws means laws," i.e., rules. They are wrong.


According to Wikipedia "a bylaw is a rule or law established by an organization or community to regulate itself."

So bylaws are laws but private laws by contract and the parties voluntarily subject and bind themselves to the bylaws by signing the contract.

Amy
AugustinD


Posts:1208


12/05/2018 8:31 AM  
Posted By AmyJ3 on 12/05/2018 5:18 AM
How else is the board to get authority to do rules & regs?


Hi Amy, from Florida's Condominium Act, Florida Statutes Chapter 718, http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html :


718.111 12(b) ... The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. ...

718.112(2)(a)2. ... The association may through its board of administration adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries, one of which may be that the association is only obligated to respond to one written inquiry per unit in any given 30-day period. ...

718.112(2)(c)... The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements [at board meetings]. ...

718.112(2)(d)7. ... the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.

718.123(1) ... The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. ...

718.303(3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

718.303(3)(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

718.503(2)(a)5. ... [Nondeveloper sellers of condo units shall disclose] The responsibility of the board and owners to abide by the condominium documents, this chapter, rules adopted by the division, and reasonable rules adopted by the board.

718.503(2)(a)11. The [nondeveloper's disclosure] governance form shall also include the following statement in conspicuous type: “This publication is intended as an informal educational overview of condominium governance. In the event of a conflict, the provisions of chapter 718, Florida Statutes, rules adopted by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation, the provisions of the condominium documents, and reasonable rules adopted by the condominium association’s board of administration prevail over the contents of this publication.”
AmyJ3
(Florida)

Posts:18


12/05/2018 9:19 AM  
Posted By AugustinD on 12/05/2018 8:31 AM
Posted By AmyJ3 on 12/05/2018 5:18 AM
How else is the board to get authority to do rules & regs?


Hi Amy, from Florida's Condominium Act, Florida Statutes Chapter 718, http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html :


718.111 12(b) ... The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. ...

718.112(2)(a)2. ... The association may through its board of administration adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries, one of which may be that the association is only obligated to respond to one written inquiry per unit in any given 30-day period. ...

718.112(2)(c)... The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements [at board meetings]. ...

718.112(2)(d)7. ... the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.

718.123(1) ... The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. ...

718.303(3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

718.303(3)(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

Augustin,
Kudos! you did a keyword search by "rule". I did too to compile this list. These are narrow exceptions of authority to boards to do limited rules. These are not the broad house rules for pets, hanging laundry etc.
Posted By AugustinD on 12/05/2018 8:31 AM
Posted By AmyJ3 on 12/05/2018 5:18 AM
How else is the board to get authority to do rules & regs?

718.503(2)(a)5. ... [Nondeveloper sellers of condo units shall disclose] The responsibility of the board and owners to abide by the condominium documents, this chapter, rules adopted by the division, and reasonable rules adopted by the board.

718.503(2)(a)11. The [nondeveloper's disclosure] governance form shall also include the following statement in conspicuous type: “This publication is intended as an informal educational overview of condominium governance. In the event of a conflict, the provisions of chapter 718, Florida Statutes, rules adopted by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation, the provisions of the condominium documents, and reasonable rules adopted by the condominium association’s board of administration prevail over the contents of this publication.”

718.503 is about disclosure prior to sale not the authority to set rules.

Amy
AmyJ3
(Florida)

Posts:18


12/05/2018 9:30 AM  
Augustin,
By Kudos I do not mean any thing derogatory. I meant finally someone is serious and thoughtful and willing to do some work and diligent digging before answering a real head scratcher of a question.

Thanks a lot for advancing the discussion to a higher level.

Amy
AugustinD


Posts:1208


12/05/2018 9:41 AM  
Hi Amy, I do not think these two are narrow:

718.303(3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

718.303(3)(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

I guess you want something more explicit. But if you are a condominium manager, then IMO advising a board that it can only make rules about records inspection; responding to owner inquiries; owner participation at meetings; and use of common elements would be malfeasance in my opinion. The case law, and as far as I am concerned the Florida Condo Act, allows any reasonable rule that implements the Bylaws or Declaration.

You might also check your condos' Articles of Incorporation. I see one Florida case where authority to impose rules came from both the Florida Condominium Act and the condo's Articles of Incorporation.

I believe Geno is super sharp about Florida condo and HOA law. He also strikes me as smart enough to own when he is mistaken (which just gives him more credibility, afaic). He's one of several posters here to whom I always pay a lot of attention.

I know "kudos" is a compliment. Thank you.



AmyJ3
(Florida)

Posts:18


12/05/2018 10:17 AM  
Posted By AugustinD on 12/05/2018 9:41 AM
Hi Amy, I do not think these two are narrow:

718.303(3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...

718.303(3)(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. ...
Augistin,

Both of these subsections are authority to the Association to set rules for fines, not directly to the board. There is mention of how the board is to implement fines per diem but the rule-setting is not the board's discretion according to this section, unless the declaration or bylaws expressly vest the board, and still the caps of $100/fine and $1,000 aggregate in the statute trump the CC&R fines. (I gotta be careful using the word "trump" these days

I did not want to split hairs in your original list because you had the right idea. There are a couple that are rules for the Division and also do not count. But on the other hand, if you search by "resolution" and "regulation" you will find a couple of more.

Posted By AugustinD on 12/05/2018 9:41 AM

I believe Geno is super sharp about Florida condo and HOA law. He also strikes me as smart enough to own when he is mistaken (which just gives him more credibility, afaic). He's one of several posters here to whom I always pay a lot of attention.

I am also waiting for Geno to step in.

Thanks

Amy
JohnC46
(South Carolina)

Posts:7865


12/05/2018 10:27 AM  
Amy

Are you an attorney or just like playing one?
KerryL1
(California)

Posts:5950


12/05/2018 11:12 AM  
I'm pleased to see, Amy you find that Augustine "had the right idea." Kudos.

Please see the language of many above citations and notice "Association" is often used in a way that shows the board acts on its behalf. The"Association" is an abstraction. "It" does nothing. So when we see: "An Association may suspend...," we know it means the board or its authorized committee may suspend privileges. In 112(2)(a)2, for example, we see, "The association may THROUGH its board of administration adopt reasonable rules and regulations."

I'll try further: Sure, the Bylaws are often the expression, at least in CA, of state statutes and laws. But they do not elaborate on them. In CA, for instance, there must be an open forum at each open board meeting. The board, however, may set rules of conduct, length of time they may speak, etc. for owners during these open forums. These rules may be changed fairly easily in CA.

To my eye, in condo 303 (3): "...or reasonable rules of the association. ..." includes rules about such things as noise nuisances, window covering colors, signs in windows. We have a general noise nuisance clause in our CC&Rs, but specifics are in our Rules & Regs.

while, a website specifically for CA Common Interest Developments, Davis-stirling.com, by CA HOA attorneys covers many topics that''re generalizable to all states. There are many excellent definitions that, imho, are preferable to Wikipedia with respects to HOAs.
AmyJ3
(Florida)

Posts:18


12/05/2018 11:23 AM  
Posted By JohnC46 on 12/05/2018 10:27 AM
Amy

Are you an attorney or just like playing one?
Just playing one but playing hard.
AugustinD


Posts:1208


12/05/2018 11:50 AM  
Posted By KerryL1 on 12/05/2018 11:12 AM
[What I think is genial sarcasm redacted ] Please see the language of many above citations and notice "Association" is often used in a way that shows the board acts on its behalf. The"Association" is an abstraction. "It" does nothing. So when we see: "An Association may suspend...," we know it means the board or its authorized committee may suspend privileges. In 112(2)(a)2, for example, we see, "The association may THROUGH its board of administration adopt reasonable rules and regulations."


KerryL1 is correct, of course. The Board is the legal agent through which the Association acts on many, but not all, issues. The Condominium Act alludes to this. AmyJ3's condos' governing documents likely say something about the powers of the Board insofar as it represents the Association. Of course, on some issues, the Association is represented by a vote of the membership.

AmyJ3, it's fine of course if you think this is all baloney. The only stupid question is an unasked one (as long as said questions show the questioner is doing some basic research). You might be better served paying a HOA attorney a few hundred dollars for a consult on these questions.
AmyJ3
(Florida)

Posts:18


12/05/2018 12:03 PM  
Posted By KerryL1 on 12/05/2018 11:12 AM

Please see the language of many above citations and notice "Association" is often used in a way that shows the board acts on its behalf. The"Association" is an abstraction. "It" does nothing. So when we see: "An Association may suspend...," we know it means the board or its authorized committee may suspend privileges. In 112(2)(a)2, for example, we see, "The association may THROUGH its board of administration adopt reasonable rules and regulations."

An association is a corporation, an entity and absolutely not an abstraction. Just like a baseball team is not an abstraction. A condo association is a member corporation equivalent to shareholders in for-profit entities. So it is a collection of all the members acting as a whole. It is absolutely not true that the association is synonymous with the board. Many actions are done by member written consent, member vote at general meetings etc. For some things that is the only way actually. So you have no basis whatsoever to equate association==board. That is the mistake that so often goes to the head of board members and gets them drunk with power. So we always try to keep them grounded.
Posted By KerryL1 on 12/05/2018 11:12 AM

To my eye, in condo 303 (3): "...or reasonable rules of the association. ..." includes rules about such things as noise nuisances, window covering colors, signs in windows. We have a general noise nuisance clause in our CC&Rs, but specifics are in our Rules & Regs.

718.303 is about fines for violations of rules already set and implemented. This is not a section where the rules themselves are being promulgated. Just like you said you have a section in your CC&R setting those restrictions. And 718.303 is not just for rule violations but violations of all sorts of provisions in the declaration, the bylaws and the Condo Act (at least the list of rules Augustin did, but there are other punishable regulations and statutory provisions which the association may fine for), payment delinquency being the most frequent violation subject to fines.

Posted By KerryL1 on 12/05/2018 11:12 AM

There are many excellent definitions that, imho, are preferable to Wikipedia with respects to HOAs.
You are right. Here is the top of the hill that courts use. I don't have a newer copy but the definition of bylaws has not changed in at least 200 years.

Black's Law Dictionary (9th Edition 2009) see attached page.
bylaw (14c) 1. Parliamentary law. (usu. pl.) A rule or administrative provision adopted by an organization for its internal governance and its external dealings. Although the bylaws may be an organization's most authoritative governing document, they are subordinate to a charter or articles of incorporation or association or to a constitution. The "constitution and bylaws" are sometimes a single document.

Amy

Attachment: 112531410271.pdf

AmyJ3
(Florida)

Posts:18


12/05/2018 12:21 PM  
Posted By AugustinD on 12/05/2018 11:50 AM

AmyJ3, it's fine of course if you think this is all baloney.

Not at all. I think it's a very healthy discussion. The only problem I have is deviating from my original question:

What is the remedy when the CC&R do not vest authority in a condo board to promulgate rules & regs, apart from the list of rules that Augustin compiled that the statute give the board authority for?

I admit the CC&R usually do. My question is about when the CC&R do not.

My follow up question is what about existing rules & regs which may have been adopted in error without authority?

Thanks

Amy
RoyalP
(South Carolina)

Posts:203


12/05/2018 12:50 PM  
!? court of law !?

!? appropriate legal action !?

!? injunction(s) !?


GenoS
(Florida)

Posts:2518


12/05/2018 3:31 PM  
I've been looking at some of the DBPR arbitration decisions over the years. These arbitration decisions also rely on precedent even though the DBPR arbitration procedures are not court cases per se. There's ample evidence that "it is understood that if not prohibited it is allowed" is not accurate at all when it comes to Rules & Regulations. Several arbitration rulings concern owners who violate their condo's pet rules and claim, as a defense, that since the CC&R's don't mention pets that Rules & Regulations about pets are invalid. For instance, in case 2003-09-5940 contains lengthy reasoning (it also discusses trucks) about Rules & Regulations. One paragraph on page 10 starts with, "The declaration in this case does not impliedly or expressly permit dogs." Then, over the years, the association amended their Rules & Regulations several times to variously permit dogs, prohibit dogs, and restrict them in different ways. Back to case 2003-09-5940,

"The owners have also argued that the restrictions contained in house rule #5 are tantamount to an amendment to the declaration and are otherwise an unenforceable use restriction which was not properly adopted as a declaration amendment. As insufficient evidence was presented to support this argument, it is rejected. Accordingly, the unit owners are found to be in violation of the house rules for bringing a dog onto the condominium property and are not permitted to bring a dog onto the property in the future, unless and until the governing documents allow for such.

Dogs were not prohibited in the Declaration. Subsequent Rules & Regulations prohibiting dogs were found valid. So it is not understood, at all, that since it was not probibited it was allowed.

The bigger question, though, seems to be whether an association may enact Rules and Regulations if the other governing documents don't explicitly give the association that power. I haven't seen anything specifically relating to that question but every DBPR arbitration ruling I've seen regarding Rules & Regulations does take notice of where the Declaration (or Bylaws, or even the Articles of Incorporation in one case) affirmatively gives the association and/or its Board the power to do so. I'll look some more but I think that the authority to enact Rules & Regulations does have to be spelled out in the other documents.

The best course of action is probably to amend the Declaration to specifically allow that. Note that there's a difference between Rules & Reulations for the common property and Rules & Regulations regarding unit use. I think - and please remember I'm not a lawyer - that the authority to do one or the other or both require specific authorization from the other documents, prefereably the Declaration. The power has to be explicit or stronly implied.
AmyJ3
(Florida)

Posts:18


12/05/2018 6:07 PM  
Posted By GenoS on 12/05/2018 3:31 PM
I've been looking at some of the DBPR arbitration decisions over the years. These arbitration decisions also rely on precedent even though the DBPR arbitration procedures are not court cases per se.

Geno, I also started reading these arbitration decisions. Is there some DBPR rule that the DBPR arbitrators treat prior arbitration decisions as precedent?

They may not be precedent for other legal disputes in court but if the arbitrators among themselves decide to respect each other's decisions in order to enhance uniformity, who is to stop them. Or is the respect for precedent actually institutionalized by the DBPR?

Posted By GenoS on 12/05/2018 3:31 PM

There's ample evidence that "it is understood that if not prohibited it is allowed" is not accurate at all when it comes to Rules & Regulations.

Geno this statement is true with the following qualifier: ".... when it comes to rules & reg the board's authority for the promulgation of which is not disputed". In other words, the board has express powers to set rules & regs, and the declaration is silent one way or the other on a particular conduct, then the board is within its powers to set a rule that prohibiting that conduct, or a rule allowing that conduct, and neither violates the silent declaration.

I brought something similar to this in a different context, statutory construction. For example if a statute does not prohibit smoking, then generally smoking is allowed (unless it runs afoul with other statutes).

Anyway thanks for the tip to look at arb cases. A lot can be learned from them.

Posted By GenoS on 12/05/2018 3:31 PM

The best course of action is probably to amend the Declaration to specifically allow that. Note that there's a difference between Rules & Reulations for the common property and Rules & Regulations regarding unit use. I think - and please remember I'm not a lawyer - that the authority to do one or the other or both require specific authorization from the other documents, prefereably the Declaration. The power has to be explicit or stronly implied.


This is where the problem is, the board fears that if subjected to a general vote the amendment may not carry.

Thanks

Amy
KerryL1
(California)

Posts:5950


12/06/2018 4:06 PM  
I'm curious about a different aspect of those CC&Rs that do not state that among its powers the Association THROUGH its board may craft rules.

In this (or both?) set(s) of CC&Rs, are there any restrictions or guidelines about architectural changes to (a) separate interest units and, (b), exclusive use common areas (Or whatever the term is in FL)? Are there any restrictions about window coverings?

Our CC&Rs require an Architectural Committee. There are several limits to what we can do in our condos in the CC&Rs and on our exclusive use common area balconies. The CC&Rs also state this ARC may make additional rules about the interiors of our condos and our exclusive use balconies.

Do these sets of CC&Rs have a long list of definitions at the beginning? is there nothing that might refer to Rules and Regulations?

I think FL has state statutes about these matters, or at least the authority or duties of ARCs. I don't really recall as it's not CA.

Given that the list Augustine provided shows the many ways boards can makes rules, e.g., about the common areas and meeting conduct, is the ONLY thing missing from the two sets of CC&Rs rules about separate interests?

Where in these two HOAs would there be rule about numbers of dogs and their behavior in condos?

More about Bylaws: a lot of them are actual state laws and state corporate laws-- and they all are about processes--the rules, if you prefer-- about the HOW.

More about Associations: They all obviously are comprised of real people. Some people have a great deal of power, e.g., boards of directors. Via our bylaws, our board may and does delegate many of these powers to our Management Co. & PM. Owners have certain powers too. In CA, for instance, they can though certain procedures overturn rules, recall directors or boards, etc.

The reason I'm careful with this language is that often on this forum an owner will write: "My HOA says we can't build a shed. Can they do that?" What is meant here by "HOA?" Is this limitation in the covenants? Is this a new rule made by a board? To try to reply we need to know exactly what human entity the poster is talking about.
AugustinD


Posts:1208


12/07/2018 8:30 AM  
Geno, thanks for bringing up the arbitration case. Your citation (and the case law citations within it) and other case law (involving much larger land lots) now have me thinking that the courts weigh the competing rights of "free enjoyment of one's home" against all members' enjoyment and what is reasonable. If a condominium Board creates a regulation whose particulars cannot be justified precisely from the governing documents, and the living quarters are close, the courts might very well rule that the regulation is "reasonable" and so permitted.
RoyalP
(South Carolina)

Posts:203


12/07/2018 10:05 AM  
..... This is where the problem is, the board fears that if subjected to a general vote the amendment may not carry. .....


sooooooo, confiscate their guns before amending ............................

not as far fetched as y'all are thinking ..... been done several times before

however

i apologize for digressing


MERRY CHRISTMAS
JohnC46
(South Carolina)

Posts:7865


12/07/2018 1:02 PM  
Would Rules & Regulations in or attached to the Bylaws require the same % of owners approving changes as the bylaws would require? If so, I would be against it. R&R's are more to allow the the BOD to fine tune and/or control things thus they should be easy to change as the situation/needs change.

I know many BOD's try to circumvent Covenants/Bylaws with R&R's so a tight eye should be kept on this ut do not throw the baby out with it's bath water.
AmyJ3
(Florida)

Posts:18


12/08/2018 3:26 AM  
Posted By JohnC46 on 12/07/2018 1:02 PM
Would Rules & Regulations in or attached to the Bylaws require the same % of owners approving changes as the bylaws would require? If so, I would be against it. R&R's are more to allow the the BOD to fine tune and/or control things thus they should be easy to change as the situation/needs change.

I know many BOD's try to circumvent Covenants/Bylaws with R&R's so a tight eye should be kept on this ut do not throw the baby out with it's bath water.

John,
How often do you contemplate the BOD needs to fine-tune a rule prohibiting hanging laundry on the balconies? If you go up and down the list of rules & regs, the basic ones about noise nuisance etc remain pretty much the same throughout the lifespan of the community.

How exactly do you propose to keep "a tight eye"? By squinting?

Or by going to court against the BOD which is lawyered up to the hilt with YOUR money.
EllieD
(Vermont)

Posts:437


12/08/2018 8:10 AM  
AmyJ3

You wrote: “How often do you contemplate the BOD needs to fine-tune a rule prohibiting hanging laundry on the balconies?”

Is this the Rule - prohibiting hanging laundry on the balconies – the rule that prompted your questions re Rules, or just an example?
AmyJ3
(Florida)

Posts:18


12/08/2018 10:59 AM  
Posted By EllieD on 12/08/2018 8:10 AM
AmyJ3

You wrote: “How often do you contemplate the BOD needs to fine-tune a rule prohibiting hanging laundry on the balconies?”

Is this the Rule - prohibiting hanging laundry on the balconies – the rule that prompted your questions re Rules, or just an example?
just an example
KerryL1
(California)

Posts:5950


12/08/2018 12:19 PM  
So, Amy; are the rules that interest you only about separate use condos? And/or exclusive use common area balconies/patios/decks?

Here's one we changed not too long ago. Our CC&Rs forbid all signs in condo windows. And so do our Rules & Regs. Because of local ordinances, we must permit signs and banners. Now just to change that requires no action as the statutes take precedence over our CC&Rs & Rules & Regs. BUT we did want to specify size limits & how many per condo. In
CA such a board-proposed rule must go to owners for a 30-day comment period. After that and taking such comments (if any) into account, the board votes to approve the rule, or not.

To go through the expense of sending out ballots to amend our bylaws (in which no such rules exist anyway) and achieving a 25% quorum and to encourage 51% of owners to approve this change seems excessive and isn't needed in CA.
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Forums > Homeowner Association > HOA Discussions > Does FL Condo Act require Rules & Regs to be included in the bylaws?



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