Questions on Official Records in FL HOA

Zachery,

-- Can you confirm it is FS 720 (and not FS 718, which covers condominiums) that applies to your HOA?

-- Do your HOA's Bylaws say anything about secret ballots?

-- What personal identifying information is on the proxies and ballots?

-- If there is no requirement for the Rules and Regs to be recorded, then as long as the Rules and Regs satisfy all other requirements of statute and the governing docs, I do not believe they need to be recorded with the county to be enforceable.

Rembaum’s Association Roundup

August 27th, 2018
Think Rules and Regulations Do Not Need to be Recorded? Think Again!! – Recent Legislative Changes Affecting Homeowners’ Associations
Many Floridians live within a community operated by an association of some kind, be it a community of single-family homes under the jurisdiction of a homeowner’s or property owner’s association, or a condominium building maintained by a condominium association. These owners should be well-aware that many aspects of life within these communities are subject to restrictions outlined in a set of governing documents, which include a declaration, articles of incorporation, bylaws, and rules and regulations. While the declaration, articles of incorporation, and bylaws are typically recorded among the public records of the county in which the community is located, the rules and regulations are typically not recorded.
Because rules and regulations are usually amendable by the approval of the board of directors only (as opposed to the additional approval of the membership), allowing rules and regulations to be unrecorded provides the board of directors with the flexibility to amend the rules and regulations as the need arises without the added expense and time required to record these rule amendments among the county’s official records. However, this option has changed for homeowner’s associations as a result of recent legislative changes which took effect on July 1, 2018.
How has this changed? Pursuant to new provisions set out in Section 720.306(1)(e) of F.S., “[a]n amendment to a governing document is effective when recorded in the public records of the county in which the community is located.” While this has certainly always been the case for a declaration, articles of incorporation, and bylaws, this is new as to rules and regulations of a homeowner’s association because they were added to the definition of the term “governing documents” as set out in Section 720.301(8), F.S. when the Statute was amended in 2015, effective on July 1st of that year.
Due to the fact that many homeowner’s associations have not recorded their rules and regulations in the public records of the county, consideration should be given to record the all of the rules and regulations, particularly if there are plans to amend them. Failing to record the rules and regulations prior to (or at the same time as) recording an amendment will possibly create what is termed a “wild” amendment, which is not connected in the public records to the document it is trying to amend. Additionally, if an amendment to the rules and regulations must be recorded in order to be effective, it is logical to conclude that the initial rules and regulations must also be recorded in order to be effective. Under Section 720.303 F.S., all governing documents are required to be recorded in the public records. Therefore, a homeowner’s association should record its rules and regulations in the public records in order to avoid this possible claim against the legal effectiveness of the rules when it becomes necessary for the association to enforce its rules against an owner.
As with any other amendment to a homeowner’s association’s governing documents, within thirty (30) days after recording an amendment to the governing documents, the homeowner’s association must provide either a copy of the recorded amendment to the members or, if a copy of the amendment was provided to the members before they approved it (for those communities with owner approval requirements for rules) and the amendment was not changed before the vote, a notice providing that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment, and that a copy of the amendment is available at no charge to the member upon written request to the association.
While the consequences of this new legislation may have been unintended, it is the law until amended otherwise or an appellate court makes a contrary ruling. Although this will likely result in some minor additional costs to homeowner’s associations, this is a good opportunity for a board of directors to examine their existing rules and regulations and update them prior to recording them among the public records.
Board members of an association subject to Chapter 720, Florida Statutes, should discuss the implications created by this recent legislative change with their association’s lawyer. It is recommended that you have experienced association counsel review any existing rules and regulations prior to recording them to ensure that they are enforceable and do not unnecessarily expose the association to liability (e.g., Fair Housing violations). As to any proposed rules not yet adopted the same holds true. Experienced association counsel should review them to both ensure enforceability and to steer clear of unintended negative consequences.

Since 2018 any changes to the Rules & Regulations must be recorded with the county since the definition of "governing documents" was amended to include Rules & Regulations. All amendments to any of the governing documents need to be recorded.

It's probably a "glitch" issue which the Florida legislature is famous for. The argument can be made - and some people make it - that the inclusion of the "Rules & Regulations" into the umbrella term "governing documents" was a mistake and subsequent recording of amendments to the Rules & Regulations was an unintended consequence of the legislative amendment to FS 720 in 2018. No one should hold their breath, however, waiting for the Florida legislature to "fix" its mistake.

So one can argue that amendments to the Rules & Regulations don't have to be recorded in the county's official records. I wouldn't want to be a test case for that in any litigation.

The necessity of recording changes to the Rules & Regulations is problematic. My board, for instance, wants to change the hours of operation for the swimming pool: something in our R&R. Changing one damn number from an 8 to a 7 now requires a whole rigmarole of having the board approve a resolution and an amendment to the already-recorded R&Rs, which has non-zero costs in time and money associated with it.

Most importantly, the amended statute, 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."

Therefore, like it or not, we can't change even minor rules & regulations without a whole big to-do. Good luck to any HOA in Florida trying to fine someone for a rules violation that hasn't been recorded with the county.

Thank you Geno, very informative, most appreciated!

Then I believe that the ballots and proxies are "official records" of the association to which members should have access, pursuant to FS 720.303(4) thru (5). Of interest may be that FS 718 is more explicit about ballots. I think FS 718.111 (12) translates to the ballots being available for inspection by members, as long as the Bylaws do not require the ballots to be secret.

Interesting discussion about recording and amending Rules and Regs by BobB, Carol and Geno. It's like the legistature thinks Florida HOA boards do not have enough to worry about with hurricane season.

FYI:
CS/CS/SB 1154: Community Associations, if enacted will revise 720.303 to include that text.

Good one, Bob. I had been following some of the relevant bills being considered this year but didn't realize SB 1154 was making such good progress. 59 pages, hoo boy! I'm reading it this afternoon. There are changes to FS 718, FS 719 and FS 720 proposed in SB 1154.