FL:Rules and regulations vs restrictions and covenants

Started by JimB37 • 7 replies • 685 views

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JimB37 (Florida)
Posts: 76

Posted:

I think this at least should go to a CAM or perhaps legal, but I wanted to get your opinions please.

On file with the county, there is a copy of our Bylaws, along with "Amended and Restated Declaration of Restrictions and Covenants".

Within these bylaws, there is a paragraph which states: "The BOD may, from time to time, adopt, amend or add to rules and regulations governing the use of Common Areas, the operation of the association, and architectural standards to the extent permitted by the Declaration.

Not on file, we have a document "Revised Rules and Regulations of...".

There is content within the non-recorded rules and regulations document which seems to overlap with the "Restrictions and Covenants". My sense is that any rule, regulation, covenant, or whatever, which is recorded, is superior to anything which is not. However, aside from amendments to bylaws, I can find no documentation which requires "rules and regulations", or anything else to be recorded.

Of course, to make things interesting, we have camps on both sides insisting they are correct.

Thanks to all in advance. Great resource for new directors like me.

AugustinD
Posts: 5,144

Posted:

-- It is common for HOA Boards to replicate word for word parts of the recorded restrictions and covenants into the HOA's Rules and Regulations.

-- You are correct that un-recorded rules and regs are legally subordinate to recorded restrictions and covenants.

-- Restrictions and covenants recorded at the time of establishment of the HOA have the legal force of contract. Unrecorded rules and regs created pursuant to your Bylaws do not have the same legal power. This is because what was recorded at the time of establishment serves as public notice to all buyers that, 'These covenants etc. are what you are contractually agreeing to when you buy here.'

-- Courts are far more likely to tell a Board that a Board-written rule or reg is unlawful vis-a-vis stating that a recorded covenant or restriction is unlawful.

-- This is HOA Law 101. To settle the dispute, hire a HOA attorney, or just email a few HOA attorneys and see if they will comment without charge.

JimB37 (Florida)
Posts: 76

Posted:

Augustin,
Excellent. Thank you. This brings up a new question then: What differentiates a "rule and regulation" from a "restriction or covenant"?

My thinking is that if something is contained within the original documents as restriction or covenant, than it shall remain so unless those documents are amended. Does that mean then, that so long as the content of the original document is not mentioned in any subsequent rule or regulation, then those are free to be considered rules and regulations? Seem like a loophole to me.

Once again, most grateful.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JimB37 on 05/19/2019 9:09 AM
What differentiates a "rule and regulation" from a "restriction or covenant"?

My thinking is that if something is contained within the original documents as restriction or covenant, than it shall remain so unless those documents are amended. Does that mean then, that so long as the content of the original document is not mentioned in any subsequent rule or regulation, then those are free to be considered rules and regulations? Seem like a loophole to me.

First, my post above evidently was not sufficiently clear on the point.

Rules and Regulations are created by a board of directors or the original declarant and are not recorded with the County. The board can amend Rules and Regs at any time. Rules and Regulations do not "run with the land" for time immemorial or until amendment.

Covenants, Conditions and Restrictions (a.k.a. "CC&Rs") are created by the declarant and recorded with the county. For nearly all HOAs, these can be amended only by a membership vote. Typically at least 2/3rds or more of the membership must support the amendment for it to be passed. The amendment must be recorded with the County Clerk to have validity.

Second, you are correct that anything within the original recorded covenants and restrictions remains so unless there is either (a) a lawful amendment is completed per what the CC&Rs require for amending; or (b) a court of law says the covenant or restriction is unlawful. E. g. decades ago, there were covenants disallowing black people from buying into a neighborhood. Cuch covenants are now null and void; or (c) in some cases, a new state or federal law may make a covenant unlawful, and a board wisely chooses to simply inform the membership of same and the board states it will not enforce the unlawful CC&R.

Third, if any rule or regulation the board creates is inconsistent with the CC&Rs, then it is an unlawful rule or regulation. Be aware that a Board cannot invent a rule or regulation that is unrelated to the purpose of the HOA as laid out in the CC&Rs. E.g. if the CC&Rs have no restrictions on animals, then the Board may not create a rule forbidding, say, cats. Else I am not sure what you are asking.

JimB37 (Florida)
Posts: 76

Posted:

Augustin,
Most helpful. Thank you.

RoyalP
Posts: 1,104

Posted:

Quote:

Posted By JimB37 on 05/19/2019 9:09 AM
Augustin,
Excellent. Thank you. This brings up a new question then: What differentiates a "rule and regulation" from a "restriction or covenant"?

My thinking is that if something is contained within the original documents as restriction or covenant, than it shall remain so unless those documents are amended. Does that mean then, that so long as the content of the original document is not mentioned in any subsequent rule or regulation, then those are free to be considered rules and regulations? Seem like a loophole to me.

Once again, most grateful.

In 'general':

Covenants and Restrictions apply to private property and are made/agreed/amended by the membership.

Rules and Regulations apply to community property and are made by the BOD under the authority granted by the Covenants and Restrictions.

CarolF (Florida)
Posts: 435

Posted:

Note the following article from a Florida attorney, published in a FL newspaper.

New Law Requires Recording of Homeowners’ Association Rule Amendments
By Joseph Adams Posted on June 17, 2018

Q: I am a director in a homeowners’ association. I understand that there have been recent changes to the laws regarding document amendments. Do these changes in the law require that all changes to the rules and regulations made by the board of directors be recorded? (W.L. via e-mail)
A: Yes. The recent changes to the Florida Homeowners’ Association Act require that amendments to rules and regulations made on or after July 1, 2018 be recorded in the public records.
The new amendment to Section 720.306(1)(e) of the statute states that an amendment to any of the “governing documents” is effective when recorded in the public records of the county in which the community is located. The statute was amended a couple of years ago to define “governing documents” to include rules and regulations.
I am not sure of the need for this change as perceived by our Legislature. It seems quite burdensome to me. By comparison, the Florida Condominium Act does not require and has never required rule amendments to be recorded to be legally valid.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JimB37 on 05/19/2019 7:53 AM
There is content within the non-recorded rules and regulations document which seems to overlap with the "Restrictions and Covenants". My sense is that any rule, regulation, covenant, or whatever, which is recorded, is superior to anything which is not. However, aside from amendments to bylaws, I can find no documentation which requires "rules and regulations", or anything else to be recorded.

Beginning last year the Rules & Regulations also have to be recorded in the county's Official Records. FS 720.306(1)(e) says:

"An amendment to a governing document is effective when recorded in the public records of the county in which the community is located."

Governing documents, by definition, include:

"Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto."

The question of whether architectural standards are "Rules and Regulations" or some other beast provided for in the CC&Rs is a good one.

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