State law or By-law - Who rules?

Does the State law (Florida) always take precedence over HOA Bylaws?

Example: 30% of the voting interests must be present at a meeting to establish a quorum (FL Statute 720.306). Our bylaws: A majority of the members (by number of votes) shall constitute a quorum. The state is less restrictive.

Example: All members of the association shall be eligible to serve on the board of directors (FL Statute 720.306(9)) Our bylaws: The Board of Directors shall be residents of X County, Florida and members of the Association. The state is less restrictive.

Is there a ‘rule’ that when the state is more/less restrictive which document prevails – when there is no conflict?

Peter,

What you need to do is to reference State Statute 720;306, which is quorums, voting and percentages.

YES!!! the state statutes always trump the bylaws of associations but if you read the statute it says----

"UNLESS THE GOVERNING DOCUMENTS PROVIDE FOR A LOWER NUMBER"-----
What this paragraph does is cover associations who do not have consistancy with the statutes. You can have a higher number but not lower than the State allows.

And also, you can be stricter on your requirements for Board membership but not lower. Basically, you can have different numbers to run your association but you cannot weaken or lessen the State minimum requirements.

Okay Peter,
You could attempt that but where would you get that idea from?

THE FIRST THING THAT YOU NEED TO UNDERSTAND IS THAT YOUR GOVERNING DOCUMENTS ALREADY HAVE BOARD NUMBERS STATED IN YOUR ARTICLES OF INCORPORATION. PROBABLY SAYS 3 OR 5 OR WHATEVER. YOU CANNOT CHANGE THAT WITHOUT A VOTE FROM THE ENTIRE MEMBERSHIP. TO CHANGE THAT MUST BE DONE AS AN AMENDMENT AND IF IT PASSES WITH THE REQUIRED PERCENTAGE ACCORDING TO YOUR BYLAWS, THEN IT GETS FILED IN YOUR COUNTY CLERKS OFFICE. (Now, tell me if you think that your 65 yr and all male would stand a chance of passing) The same no females and with 15 yr ownership, etc.

Your governing Articles of Incorporation were given to your association by the Developer.They are filed legal documents with your State. That is your rules to follow unless your entire membership wants to change them, then they can but it must follow them (articles of incorp)to the letter to enact changes. Be realistic. The State Statutes are actually guidelines by which they make sure that HOAs don't go nuts with unobtainable numbers.

To answer your ORIGINAL question -
order of rules is:

Federal, State, Local laws, Articles of Incorporation, Constitution (if you have one), Bylaws, Standing Rules of the Organization, Policies and Procedures, parliamentary procedures authority (Roberts Rules, Alice Sturgis, etc.)

Good Morning Robert,

I appreciate the good comments from you reguarding our Florida Statutes.

Actually, Florida leads the nation in governing HOAs probably fueled by the massive number of associations. Our Statutes are 50 some pages and every year the legislature goes back to work and deals with more issues that have come up during the year. We have manditory mediation and arbitration to prevent the court system from haveing to deal with most of this stuff, which is usually so petty.

Each year, I see changes that are good for the association and some that are bad. There is a HUGE coalition of lawyers and lobbyists who converge on Tallahassee each year with their ideas and bus loads of just plain old Board members, trying to protect their rights to govern their respective associations. So my answer is--YES--- I think that most States should at least look at the work that has been done in Florida reguarding HOA'S

Peter,
Your ByLaw may state the requirement to be a "County Resident and this was probably written to keep absentee people from being on the Board. Having a member missing for many meetings is a deterant to good sucessful meetings. In Florida, many homeowners in associations are "snow birds" or absent for a good percent of the year.

But in the mean time, your rule to only allow County resdients is an illegal ByLaw in my opinion as it contradicts the Statute. You will need to amend it to get into compliance with the State. If you have an association lawyer, run it by them but I am pretty sure that you will need to change that per a vote by the membership.

Peter is in Florida. The bylaw that he is quoting says that only County residents may be on the Board. In Florida, we are registered as a certain County resident for our voters registration and if you are not residing in that County, then you cannot be on his Board.

I see this as an illegal ByLaw because "IF" I owned a home there and rented it out, and I lived in the next County, I would be eligable to be on the Board according to the State but not according to his ByLaws. Sometimes, older association documents have these outdated statements. As we beome more mobile and have more than one residence, things get complicated and our documents have not kept up with these factors. It is difficult for Associations to function with absentee Board members but the law is the law and does allow for it.

PeterB1: If you are speaking about bylaws which constitute having board members as those on-site year-round, (County Resident), then I agree that it is extremely important to have a hands-on Board member, and one who can be personally accessible as needed.

There are many posts here of Board members who only reside in their community as seasonal residents (snowbirds), and for that reason association business is difficult to manage and "offsite" Board members are not recommended.

"Tighter or looser" Bylaws/State law does not have to restrict you. What I'm proposing is to learn how the association wants to interpret this dictate from the Bylaws..."MUST be a county resident". If it is to have onsite board members who are available as required, then perhaps the wording should be made clear. It is Your association and Your Bylaws can be amended (by percentage of members to change as stated in the bylaws) to dictate what is clear and workable for all residents.

I would very much like to know the answer to the same question above.

having just spent weeks researching a similar issue (for different regulatory agencies), I would like to pass on some learnings that might help folks better understand.

We need to remove the phrase "stricter than" from our lexicon. The supremacy clause, which is the "law" that sets the order or precedent for following laws made by the Feds, States, Counties, Cities, etc., doesn't use the word "stricter than". It has been judged to use a "conflict"based definition.

WHat we should say is that no lower lawmaking body may make and enforce a statute that is in CONFLICT WITH a higher authority statute. By using the words "in conflict with", we eliminate the guessing games of "well, allowing only blue eyed women to swim is MORE restrictive, right?". Instead, we look at the purpose of the higher statute, and decide if the lower one is in conflict with it. If the higher statute allows for ALL people to drive a car, regardless of age, then a statute that "restricts" that driving to only those over 24 and under 48 would be more restrictive, but in conflict (and thus, struck down). We can ignore the semantics of 'restrictive" but we have to learn the intent and purpose of the law in order to determine what will stand, and what wont.

State courts are bound to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court. Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Edgar v. Mite Corp., 457 U.S. 624, 631 (1982).

the same arguement would apply to laws beneath State level.. State laws are also supreme to them.

I don't really disagree with anything that has been said here, but I've never really agreed with the blanket statement that "higher" government laws automatically trump "lower" ones. There are instances of "lower" laws that are in conflict with "higher authority" and while there may still be some debate going on, the laws still stand. For example, there is the assisted suicide law in Oregon, and the semi-legalization of marijuana in certain California cities. Both of these are in conflict with "higher" law, but last I heard they were both still in effect in their respective areas.

As an engineer and a Demicin I like the idea of a uniform structured hierarchy of rules. But as a westerner and a Republicrat, I also like the idea that local decisions about rules is better than the decisions made by politicians hundreds of miles away.

The bottom line is I don't think anybody can absolutely say that an HOA rule that requires local residency for Board membership will automatically be thrown out (or that it will stand) just because a state law says all HOA members are eligible. The best I think we could really say is that most likely the courts will rule a certain way. The real question then becomes how much does a given HOA want to try to push their specific rule.

Peter1
Your documents are what govern your community, when there is nothing in your docs than the statutes rule.
That simple!
I am a CAM licensed Manager in S.E. Florida, with over 30 years in the industry.
I have created a series of site in conjunction to my business.
If you wish to reference the 720 statutes please go to
www.condospecialties.info
There you will find statutes for all 50 states, Canada, Costa Rica, MOLD related issues, EPA and FEMA links and much more including the Statutes 720 in their entirety.
Please any one requiring any assistance please feel free to contact me thru the web site or Here!
Paula

just as an FYI on this issue, i can't speak to the Oregon laws, but in California, the DEA (federal) does indeed still prosecute marijuana users, despite the California exemptions/law. The STATE won't prosecute, but the Feds still do under their law. Dwight is right, there is a period where both/neither law may apply until the courts rule, and in this case, both laws apply until the courts straighten it out.

OK, now my turn.

If I were to choose a "one size fits all" statement, I would say that state law (assuming you have one) supercedes association documents, and here's my reasoning:

1. If your association documents are silent on an issue and your state law covers that issue, the state law governs because your documents say nothing.

2. If the law is silent on an issue and your documents do cover an issue, then the documents govern; same reasoning as above.

3. If your state law covers an issue AND your documents also cover the issue, then:

A. If your state law ALLOWS you to replace a given requirement with another, similar, requirement (by using something like, "unless otherwise provided in the bylaws, etc", then you may substitute the provision in your documents in place of the provision in the law;

B. If your state law ALLOWS you to replace a minimum requirement with a greater requirement by stating something like, "must be equal to or greater than...." (or something similar), then any requirement in your documents that is greater than the requirement stated in the law by definition also meets the minimum requirement stated by the law; and

C. If your state law ALLOWS you to replace a maximum permitted clause with a clause that is less than or equal to the maximum, then any requirement in your documents that is less than the maximum permitted by state law, by definition, also fits within the maximum requirement stated in the law.

So, I guess, since it is THE LAW that PERMITS you to substitute a provision in place of one in the law, or with something that is more or less stringent than what is stated in the law, one could argue that in reality, the law governs.

I think I've stated what most of you already have; I just put it differently. One has to read the law very carefully to see what it says, being careful not to read sections out of context.

I think the main thing that Bruce has shown is that when it comes to laws and politicians, it's never all that simple. If it was simple, there would probably be a lot more attorneys on the bread line. Then again, maybe there should be.

One other little observation in looking over the posts on this general topic: it seems like the people who will typically give the federal -> state -> local progression of rules / laws are from the eastern side of the country, while westerners are more often inclined to favor local control first. I'm not trying to draw any conclusions from that, just making a general observation.

Jack: we are in the same predicament. we have so many capital expenses and are a small (63 homes) sub-division that it's actually comical to think that one of them would ever get done. We are going to have to send out for 2/3 rds votes to do some "article" amendments, we don't have a choice or we will be filing
bankruptcy also. Our problem is when the developers finished building and the Covenant and bylaws were written they put every enticement you can think of in there: replacing all of the roofs, painting the whole of the outside of everyone's house every couple of years, absolutely ludicrous; but it did sell the homes and that was the developer's goal..now we are stuck so I do feel for you, good luck!