State Statutes versus Governing Documents

Lizanne, your example of a State statutes qualifies that it applies except when "there is different language in the governing documents." In which case the statute says your HOA documents control if different than the state statute. If it is not covered in your HOA documents then the state statute would control. However, when the state statute does not include that exception then the state statute supercedes any conflicting item in your HOA documents.

LizanneG

Yes, it is confusing. Why would such a provision be written? We expect the law on HOAs to help and protect the owners. Wrong! The provision is a clever way to make the law appear to be something it isn't, and hand the power to the drafters of the initial governing documents — the attorneys for the developers.

The provision in the law should apply to all HOAs as providing the underlying protection for the owners/members and defining good governance. That is what lay people expect. The law should then provide that the governing documents may provide additional provisions that are consistent (or not inconsistent — there is a big difference so be careful) with the law.

What the Florida provision does is hand the authority to write the initial governing documents to the developers and their attorneys, and supersede the law. The law is a sham. It appears to provide protection to the owners/members by the stated provision, but then hands to power to supersede the law with anything the developer wants. Clearly a "wolf in sheep's clothing".

The Florida law you cite is not an isolated case. In my state, the nonprofit corporate law has numerous similar provisions which hand the power and authority to the writers (lawyers) of the articles and bylaws. For owners associations, these are the lawyers for the developers.

Decide what you believe should be in the law, or maybe you are satisfied with the existing provision. Then write your state representative and state senator requesting a change in the provision and elimination of the provision granting the power and authority to the developer and developer's attorneys. Send a copy to Representative Julio Robaina, who is a champion of the owners/members.