Does FL Condo Act require Rules & Regs to be included in the bylaws?

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.

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.

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?

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

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.”

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

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.


I am also waiting for Geno to step in.

Thanks

Amy

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.

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.

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

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.

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.

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

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.

just an example