Bylaws vs Rules

I have a similar situation with my POA. The BOD created what they called "Policies and Procedures." These are essentially Bylaws but the BOD is terrified of making changes to the bylaws so they created the Policies and Procedures. I believe their fear is that somehow the bylaws are carved in stone. This is the result of having an overload of inexperienced people on the board who do not understand that the BOD can alter the bylaws at will.

One problem was that the first owner-controlled board tried to terminate the developer's voting power by amending the bylaws. The developer's voting power is set forth in the CC&R's, so the BOD was trying to amend the CC&R's by amending the bylaws. The POA's own lawyer told the BOD they could not do that and ever since the board has been scared to touch the bylaws.

James - why would you want something as changeable and cosmetic as a rule governing boat lift covers to be in your bylaws?

If the owners don't want this 'rule' then get up a petition and get it changed. Lot easier than a bylaw and will probably be outdated again in 4 years anyway . . .

Or get on the board and work for a change.

You might also want to read through FL §723 (Mobile Homes).

FS §723.002 declares that this Chapter is limited in its application to renters of a lot in a mobile home park.
Our park is composed solely of shareholders who collectively own the park.

Check your bylaws under "power of the board."

If they can establish rules, then they can enforce them.

They could pass a rule that says there is a $25 fine for violation of the rules.

I have a feeling there are other rules which have fines attached to them, aren't there?

Would the court see this fine as 'unreasonable'? I doubt it.

The board has the power to levy these fines, the members must follow the rules or face consequences. That's how your HOA is set up. No court would interfer, methinks.

Pretty simple.

If you don't like the rules, as a Member you have many options to bring about change.

PS

Charles,
Since you have no covenants and the Rules and Regulations can be viewed as mini-covenants the shareholders could vote to amend the amendment article to the Rules to say: a'ny amendments to the Rules shall be approved by a majority of members present at the meeting.’ I think this could work in your situation and it would limit the BOD’s authority to impose unreasonable rules or fines.
You see, in most HOAs in Florida the By-laws address only ‘management issues’, including voting, the BOD duties, membership’s responsibilities, meetings, money management. Also, the By-laws cannot be in conflict with the Articles and the Articles cannot be in conflict with Ch. 617. Hope this makes sense to you.

James,
Please forgive me for calling you Charles.. I was in a hurry.. more tomorrow.

In an equity court, the test is not reasonableness bur fairness. Thus, the amount of the fine is of no consequence; it is the presence of a fine. The court consider whether it is fair for a Board to not only arbitrarily forbid something without the consent of the residents but to impose a penal consequence for committing the forbidden act. The totality of the two circumstances are enough for a court to find against the rule. Unfortunately, a ruling of an equity court does not constitute precedence. Judge A may find the rule shocking, but Judge B in the courtroom next door, may not. Thus, the finding isn't binding on subsequent cases.
The issue therefore depends whether the Statute, by its language, declares that the rule in question has to be enacted as a bylaw. Here, the test is does "the thing speaks for itself"; if the language of the statute admits of no other interpretation that requiring the rule to be enacted as a bylaw, then its a bylaw. If it's subject to interpretation, the court requires either a citation showing the statute to be resolved in a particular way, or if there are no citations (meaning the issue has never been decided in court before) the parties must present the intent of the legislature in enacting the statute. In Florida, that's not easy; the records were computerized earlier than 1999.

Petunka,

I am with you on this one. Any application for incorporation of a HOA or Condo association requires a set of covenants or bylaws of which they will follow. They must be somewhere, just not known to James.

James, what County are you in? Maybe we can help you find your original Inc documents.

P.,

I did NOT say that you said that. I said it---that "covenants are required for incorporation"

James,

This is what you fall under Statute wise. Perhaps a search of this divisions archives might produce something. It uses the word "prospectus" instead of covenants for mobile home lots that are leased instead of owned by the individuals.

723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.--

(1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the division. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the homeowner a prospectus approved by the division. This subsection does not invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had:

1. Filed a prospectus with the division prior to entering into the lot rental agreement;

2. Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and

3. Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division.

This paragraph does not preclude the finding that a lot rental agreement is invalid on other grounds and does not limit any rights of a mobile home owner or preclude a mobile home owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable.

(b) The division shall determine whether the proposed prospectus or offering circular is adequate to meet the requirements of this chapter and shall notify the park owner by mail, within 45 days after receipt of the document, that the division has found that the prospectus or offering circular is adequate or has found specified deficiencies. If the division does not make either finding within 45 days, the prospectus shall be deemed to have been found adequate.

(c)1. Filings for mobile home parks in which lots have not been offered for lease prior to June 4, 1984, shall be accompanied by a filing fee of $10 per lot offered for lease by the park owner; however, the fee shall not be less than $100.

2. Filings for mobile home parks in which lots have been offered for lease prior to the effective date of this chapter shall be accompanied by a filing fee as follows:

a. For a park in which there are 26-50 lots: $100.

b. For a park in which there are 51-100 lots: $150.

c. For a park in which there are 101-150 lots: $200.

d. For a park in which there are 151-200 lots: $250.

e. For a park in which there are 201 or more lots: $300.

(d) The division shall maintain copies of each prospectus and all amendments to each prospectus which are considered adequate by the division. The division shall provide copies of documents requested in writing under this subsection within 10 days after the written request is received.

(2) The park owner shall furnish a copy of the prospectus or offering circular together with all of the exhibits thereto to each prospective lessee. Delivery shall be made prior to execution of the lot rental agreement or at the time of occupancy, whichever occurs first. Upon delivery of a prospectus to a prospective lessee, the lot rental agreement is voidable by the lessee for a period of 15 days. However, the park owner is not required to furnish a copy of the prospectus or offering circular if the tenancy is a renewal of a tenancy and the mobile home owner has previously received the prospectus or offering circular.

(3) The prospectus or offering circular together with its exhibits is a disclosure document intended to afford protection to homeowners and prospective homeowners in the mobile home park. The purpose of the document is to disclose the representations of the mobile home park owner concerning the operations of the mobile home park.

(4) With regard to a tenancy in existence on the effective date of this chapter, the prospectus or offering circular offered by the mobile home park owner shall contain the same terms and conditions as rental agreements offered to all other mobile home owners residing in the park on the effective date of this act, excepting only rent variations based upon lot location and size, and shall not require any mobile home owner to install any permanent improvements.

(5) The mobile home park owner may request that the homeowner sign a receipt indicating that the homeowner has received a copy of the prospectus, the rules and regulations, and other pertinent documents so long as any such documents are clearly identified in the receipt itself. Such a receipt shall indicate nothing more than that the documents identified herein have been received by the mobile home owner. The receipt, if requested, shall be signed at the time of delivery of the identified documents. If the homeowner refuses to sign the receipt, the park owner shall still deliver to the homeowner a copy of the prospectus, rules and regulations, and any other documents which otherwise would have been delivered upon execution of the receipt. However, the homeowner shall thereafter be barred from claiming that the park owner has failed to deliver such documents. The refusal of the homeowner to sign the receipt shall under no circumstances constitute a ground for eviction of the homeowner or of a mobile home or for the imposition of any other penalty.
History.--s. 1, ch. 84-80; s. 4, ch. 86-162; s. 11, ch. 88-147; s. 5, ch. 90-198; s. 1, ch. 96-394; s. 3,

As regards DonnaS comments, I am at a loss to understand how she arrived at her subject matter. Shareholders, means the shareholders of the corporation that administers and in whose name the mobile home park land is titled, together with all the commonly held buildings, roads, etc. exclusive of the homes of the shareholders. The shareholders are NOT renters. They each own an undivided share of the park represented by a share certificate which gives each shareholder the right to place a mobile home on a designated spot in the park. They never pay rent. They pay assessments to maintain the park's common areas, salaries of employees,etc. Thus, all the material set out by SusanS in her last post of this thread is totally inapplicable.
The Park was organised pursuant to Chapter 617 and so states in the Articles. Thus all that is left to discover is "Is there any case law, preferably one from an appellate court, in which the meaning and application of F.S. Title XXXVI, Chapter 617.01401 Definitions, subsection (3) is set forth?" If there is none in Florida, is there any in Texas, since Texas possesses a statute with precisely the same language. If neither state has any case law, does Texas have legislative records showing what was the legislative intent in enacting that statute. (I have found that it is virtually hopeless to find any Florida legislative records.)
The Texas legislative intent, if such exists, would be heavily persuasive to a Florida court because there is no other guideline.

Dear James,
Let me be brutally honest. You seem to zoom on one By-laws definition in Chapter 617 and also say you have Chapter 720. Chapter 720 may not be even applicable unless the membership in your community is mandatory.
Pretty please read the ‘Mobile Homes Statute’ in its entirety and tell which articles you think are applicable to your community. You can not build a case on one definition in Chapter 617. And, that is my concern.

You cannot help me because you cannot accept that there is only one issue that's relevant. Does the statute apply or not. Normally, because the language, on its face appears straightforward, one might declare that it's open and shut. But The statute states, in part: "adopted for the regulation or management of the affairs of the corporation". It may admit of the possibility that the offending Rule does not concern the regulation or management of the corporation, but the affairs and management of the shareholders. Thus, to divine the applicability of the statute, one has to either find an adjudicated case in which that precise issue was determined, or discover the legislative intent behind enacting the statute. That's it.
I had hoped that someone in Florida, or Texas, or in any other state which has a similar statute with the precisely the same wording could cite a case that had been decided or had access to the legislative records which shows the debate and determinations that showed the legislative intent behind the statute. If there is no one, the a Florida court will have to decide because the shareholder involved has hired legal counsel and intends to go to court. He is a a near neighbor and I respect his determination. I sincerely wish for the demise of all rules a regulations enacted without the consent of the shareholders.

James,
Your issue is very interesting. I agree that F.S.723 does not seem to apply to your case. You state that your Articles of Incorporation do not mention Rules and Regulations. Our Association recently adopted initial By-laws. We were told by our attorney that the power for the Board to adopt rules must be granted in our Declaration or Articles of Incorporation. Our Board has the authority to adopt the initial by-laws but we could not grant ourselves powers or create rules which were not authorized by our recorded documents. We would first need to ammend the Articles and then create consistent By-laws.

Good luck and please do let us know how this is resolved.

Carolyn

This section talks about shareholders in HOAs but, again, it may not apply.

723.075 Homeowners’ associations.

(1) In order to exercise the rights provided in s. 723.071, the mobile home owners shall form an association in compliance with this section and ss. 723.077, 723.078, and 723.079, which shall be a corporation for profit or not for profit and of which not less than two-thirds of all of the mobile home owners within the park shall have consented, in writing, to become members or shareholders.

Upon such consent by two-thirds of the mobile home owners, all consenting mobile home owners in the park and their successors shall become members of the association and shall be bound by the provisions of the articles of incorporation, the bylaws of the association, and such restrictions as may be properly promulgated pursuant thereto. The association shall have no member or shareholder who is not a bona fide owner of a mobile home located in the park. Upon incorporation and service of the notice described in s. 723.076, the association shall become the representative of the mobile home owners in all matters relating to this chapter.

......

Donna S
For the last, final time. None of the resident shareholders pay rent. Chapter 723 has absolutely no application.
The statute at issue is F.S. Title XXXVI, Chapter 617.01401 Definitions, subsection (3)
“Bylaws” means the codes or codes of rules adopted for the regulation or management of the affairs of the corporation IRRESPECTIVE OF THE NAME OF NAMES BY WHICH SUCH RULES AS DESIGNATED.
(emphasis supplied) In case you missed it, it was set forth in the first post on the entire thread.
To head of a fruitless discussion of Chapter 720, please note that 720.301 Definitions.—As used in this chapter, the term: 9) “Homeowners’ association” or “association” means a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel. The term “homeowners’ association” does not include a community development district or other similar special taxing district created pursuant to statute.
11) “Parcel” means a platted or unplatted lot, tract, unit, or other subdivision of real property within a community, as described in the declaration:
(a) Which is capable of separate conveyance; and
(b) Of which the parcel owner, or an association in which the parcel owner must be a member, is obligated:
1. By the governing documents to be a member of an association that serves the community; and
2. To pay to the homeowners’ association assessments that, if not paid, may result in a lien.
(12) “Parcel owner” means the record owner of legal title to a parcel.
Our shareholders do not have title to a conveyable platted site. They are owners of a corporation that has title to all the land in the park. We're governed under Chapter 617, like it or not.

Donna,

it is quite possible that James park is governed by chapter 617/Articles/By-laws and Rules (no covenants) where the rights are only given to the members of the corporation. Chapter 723 is a little more complicated and I have not read it in any detail. But, it seems to me now that 723 provisions apply only to non-owners of the park regardless if they own or rent the land. Also, many parks have two separate associations for the reasons stated above unless everyone buys a share but I still do not quite understand if they automatically become members. Also, many are set up as co-ops. Again, I am not acquainted with this type of ownership, so take this with a grain of salt.