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STATE STATUTES--GUIDELINES OR LAWS?

Started by DonnaS • 35 replies • 3220 views

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DonnaS (Tennessee)
Posts: 5,671
Posted:

One thing that we always have spirited discussions about is how we are to follow our Documents and State Statutes. Are the Statutes laws or just guidelines? I have spent the day doing research on the subject. Now it's your turn to post opinions.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

State statutes are definitely laws. That's what the word "statute" means: "a law passed by a legislative body and set forth in a document". I've heard some say they are only guidelines, but those people who think that are very misguided.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Mary,
Exactly. The other day we had a post on Board resignations and someone said that their documents are "silent" and they did not know what to do. That is the reason that the Statutes are written. To tell an association how to take care of a situation when there is no addressing of the matter in the Documents. I see it over and over--the docs are silent and we don't know what to do.
EllenS1 (Florida)
Posts: 1,148
Posted:
Donna,

Isn't it true that if your a section of your old outdated covenants conflict with recent state law that state law previals?
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

I'm sure there are some board members out there who don't know there are state statutes governing HOAs. In fact, not all states do have them! When I first was elected to the board (5-member board)NONE of the members (including the Pres who was also on a condo board as Pres)were aware of the AZ HOA statutes. I'm the one who found it out and began copying and reading them.
AnnaD2 (Florida)
Posts: 960
Posted:
Donna, I'm confused. Just what exactly what are you asking here? You've always been the one who set us all straight; as to what takes precedence...

You've always been the one who told us which documents, law, statutes override the others.

Are you trying to get us to think---or are you being "challenged" as a lot of us always are?
MicheleD (Kentucky)
Posts: 4,491
Posted:
I'm pretty sure that if it's a statute, that there's a higher expectation of compliance than if something were simply a guideline.

And, if there is a statute, it would seem to me that there is also terminology covering some sort of consequence if the statute is not followed. Whereas, with a guideline, if not followed, there's probably no direct consequence (in terms of a fine or whatever).

To me a guideline is more or less "optional." You don't have to follow it (the guideline), but it's recommended that you do.

A certain minimum level of performance may be expected, but, again, it is only a recommendation.

For example, there are guidelines for when you should get your kids vaccinated with certain vaccines, but, with the exception of those vaccines that are mandated, the parents may or may not follow the guidelines. There may be physical or organic consequences to not following the recommended guidelines, but no legal ramifications.

There are guidelines for what constitutes a "healthy" diet. And people are free to follow those guidelines . . . or not. They may (or may not) compromise their health by not following the guidelines, but they will not suffer any administrative consequences.

Whereas, a statute, it would seem, is more of a mandate that must be followed.

If your state has a statute that all children under 80 pounds must be properly confined in a car seat when riding in a car, then that's not a guideline anymore (like some states might have). It means that if you have a child under 80 pounds in your car while you're driving, and that child is not restrained properly in a car seat, there are certain potential sanctions you may face.

If your city has an ordinance (statute) that says that all dogs must be on a leash when outside the home, well, then there's probably a fairly high expectation that when take your dog for a walk that he will be on a leash, or you will be open to some penalty for not following the ordinance (statute).

So if your state has HOA legislation that addresses Open Meetings, then those statutes are not guidelines. They are to be followed. They may defer some of their content to your organization's own governing documents, as long as the governing documents do not conflict with the statute.

SusannaM (Florida)
Posts: 366
Posted:
Quote:
Posted By EllenS1 on 01/17/2009 2:00 PM
Donna,

Isn't it true that if your a section of your old outdated covenants conflict with recent state law that state law previals?

Correct, the laws prevail. In FL, condo associations are heavily regulated and BODs are advised to follow FL 718 to the letter. Condo laws have been in existence since the 70s.

HOAs are a different breed and a lot less regulated. Not all of FL 720 articles override governing documents. When governing documents are silent in a HOA, then the BOD can use FL 720 as a guideline. However, FL 720 is not a "BOD manual." If your Bylaws are outdated and silent about specific topics you may not find the answer in FL 720. Bylaws need to be amended with the help of attorneys. And, if your HOA was incorporated before 1995, there are a few 720 rules that don't apply. But that's a different issue.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Anna,
Things were slow on the site today and I decided to tickle everyones thinking process and post this. I spent a great deal of time looking up Statute stuff today. The Statutes always have precedence over governing documents if push comes to shove. But when you read the Statutes, especially 720, there are so many words that sends the answer back to the governing documents. The "notwithstanding, may, shall, shall nots" always give the Statute the right to NOT govern and give it back to the governing docs for interpretation. I am always "challenged" but today I was bored.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Donna,
I'm late getting around to it, but IMO Statutes are Laws. Period.

The rub comes, and you now this, and are being coy, is, so what? How many states are enforcing these HOA and condo statutes. We have heard on this site of State Top Authority declaring verbally they expect the HOA's to work it out. It other words operate like a town or city and enforce your own laws. We know we can't do that either. We also know, we all don't like to recommend to the folks posting, "you surely need a lawyer." But we do it because we know you can can't walk into a police station and ask the law enforcement officer to enforce the law.

My recommendation: I guess it would be to stumble along like we do.
We seem to serve a purse albeit it's hidden in the dust come where.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By SusannaM on 01/17/2009 5:28 PM
Posted By EllenS1 on 01/17/2009 2:00 PM

When governing documents are silent in a HOA, then the BOD can use FL 720 as a guideline.

This makes no sense to me.

A statute is not a guideline, it is a governing authority.

If you are saying that you can use the statute as a guideline for creating verbiage in your governing documents that align with the statute, then I am all for it.

But when you say if the governing documents are silent . . . then the BOD can use FL 720 as guideline, I think that is misleading. Or rather, muddy terminology perhaps.

If the governing documents are silent on an issue, and there exists a statute in the HOA's state that does address the issue, then the statute prevails and is as binding as if it were in the HOA's governing documents. The HOA (via its board and/or resident members) must follow it.

That's not a guideline.

Perhaps we are simply splitting hairs here and by the sentence above you mean to say,

". . . the BOD can use FL 720 as its authority."

or

". . . the BOD can use FL 720 to govern its actions."
MicheleD (Kentucky)
Posts: 4,491
Posted:
opps. screwed up the hierarchy in that post above!

Sorry.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Michele,
Seems good logic to me.
See Donnas and my post about what do the documents actually provide, more or less.
SusannaM (Florida)
Posts: 366
Posted:
A "guideline" is a guide or indication for present or future action. So, when a BOD in a HOA is in doubt about how to proceed they should look up FL 720. A CAM should advise the BOD to do so if he or she is doing a good job, which is not always the case.

If the BOD wants or needs to amend their bylaws (with the assistance of an experienced attorney), then they would use FL 720 to govern certain (not all )future actions as not to contradict the Statutes, whihc BTW are being reviewed by the legislature every year.

That's the way I see it and that's the way I was taught in class.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Susanna,

Just for clarification purposes. In AZ, condos and planned communities are both referred to as HOAs (homeowners associations). I know different terminology is used in different states and that may account for you stating condos and HOAs are not the same. Just thought I'd let you know that it's not that way everywhere. However when you say HOAs are not as regulated as condos, that,indeed, is also the case in AZ -- the condo statutes are much more inclusive.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Robert, SC,

You are correct on both counts. Statutes are laws -- PERIOD. And the basic problem is that there is no enforcement in most states that have HOA laws. Several years ago AZ enacted a law authorizing a State agency to adjudicate HOA disputes now a judge has ruled this unconstitutional (AZ constitution)! So, now I guess we're back to square one. Although the agency is still taking cases I'd certainly think twice about spending the money. If the assn loses all they have to do is appeal and make the unconstitutional claim.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Okay, I think that we are all on the same page as to what they are. NOW, how about this to throw a monkey wrench into the mix.

Florida Statutes might be a little stranger than others as I have always questioned some wording as being ambiguous in some areas. But then again, where is anything written in stone. Below is something that I am referring to.

From the Statute on fining.----"2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents

IF!!! starts out the paragraph and the fine amount is very specific on the amount limits. BUT!!! IF the governing docs say $200.00 per day and no limiit, then why bother with a limit amount in the Statute? The word "REASONABLE is in there. What is reasonable?
This is just one of many that always are interpreted differently.
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By DonnaS on 01/18/2009 8:01 AM

Okay, I think that we are all on the same page as to what they are. NOW, how about this to throw a monkey wrench into the mix.

Florida Statutes might be a little stranger than others as I have always questioned some wording as being ambiguous in some areas. But then again, where is anything written in stone. Below is something that I am referring to.

From the Statute on fining.----"2) If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents

IF!!! starts out the paragraph and the fine amount is very specific on the amount limits. BUT!!! IF the governing docs say $200.00 per day and no limiit, then why bother with a limit amount in the Statute? The word "REASONABLE is in there. What is reasonable?
This is just one of many that always are interpreted differently.

Donna,

OK, here's my interpretation (and you know I'm always right! LOL):

The "IF" only pertains to whether or not the gov docs provide for suspension, etc of a members use of common areas. It does not have anything to do with what the gov docs say about the amount of a fine. In other words, if the gov docs are silent on suspension of members use of facilities, then this statute does not apply at all. On the other hand if the docs do provide for this then the assn can only charge a fine as outlined in the statute.

"Reasonable" seems to be a word that our legislators like to use all the time. We, in AZ, have a big problem with this also. What's reasonable to you may not be reasonable to me. If this were to be disputed in a court of law the judge would determine what is reasonable. I'm sure he would not think a $50/day fine for leaving your trash can out would be reasonable. BOD's need to us a little common sense when applying "reasonable" to their policies.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Great interpretation of this BUT!!! where do they address fines for violations for the covenants, like you said, garbage cans, ot parking, etc. I guess that I better go back to all of the fining stuff and see if I can purge something out.
SusannaM (Florida)
Posts: 366
Posted:
Donna, no matter how much research you do online in TN, you won't find everything you are looking for in
FL 720. Every HOA in FL has its own Covenants and Bylaws, depending on who the developer was and when was the HOA incorporated. FL 720 is NOT a "manual" for BODs. HOAs in Fl have quite a bit of leeway. Now, condo associations, that's a different chapter altogether, full of regulations and with little room for error.
AnnaD2 (Florida)
Posts: 960
Posted:
If every Board member did as much research as Donna, whether it be in Tennessee, Florida, Alaska or Barbados there would be a lot more educated people running their associations, than the thousands who just "wing it" or interpret things the way they want to. Read on, Donna.
RobertR1 (South Carolina)
Posts: 5,164
Posted:
Susanna,
For the sake of discussion only. When you say HOA's have quite a bit of leeway, do you mean they take quite a bit of leeway or do you mean there is nothing in the state statute that expressly addresses a particular problem? Then of course we have to consider the actually interest in the state getting down in the mud and playing with the peons. Seems many states have a sort of a hands off policy, and "do the best you can folks," when it comes to enforcements. Not judging any of this just defining some issues.
Of all the people on this site, Donna would have to rank at the top or close when considering the interpertation of Florida Statutes. I am not in any way minimizing your iput here of your knowledge of Florida statutes, but it is plain to me, you and Donna are a lot closer together than what seems to be suggested in your latest post.

I imagine Donna would redily agree that not only are Florida's HOA individual Hoa's but the same can be said for all HOA's and condominiums. Granted there are differences in the legislative language, but in many occasions some issues need a little consideration and adjustments have to be made. I have a terrible time with this but not as much as before I joined this site. There is all kinds of room here to posture and spar and contend, but, bottom line, sometimes an action decision has to be made and there you go, take the leap.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Susanna,
I think that you are correct in your entire statement. There are plenty of statements in 720 where the State "disclaims" itself from making a judgement call on what to do. The fact that they do not address fines for non compliances of the covenants is one example. As Mary interpreted the fine limits is stated just for common and association property, not individual properties. And they wonder why Boards have so many problems with enforcements.

I do have current Statutes and have constantly kept up with proposed bills and laws.

Another area is Board elections. Those Statutes came off of the 617 "Not For Profit Corp" laws. In 2000, the State wrote 720, HOA Laws and did a mediocre job of adapting them to the HOA Statutes. There are still too many unclear or ambiguous areas. So if you get a rogue Board? VOILA!!, trouble in paradise.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Anna,
Thanks so much but I read this for 2 reasons. #1, its a slow time of year up here and #2, I am waiting for water to boil . I guess that I got started because I was appointed to my Board in Florida because I had campaigned so hard to increase the Board from 3 to 5. They eyeballed me as the smarty pants and needed someone to read and tell them what was going on. Luckily, our P.M and I had many think sessions on how to deal with stuff. I learned from her and I taught her stuff that she did not see in our own docs. So the quest to learn more continues .
MaryA1 (Arizona)
Posts: 7,043
Posted:
Donna,

I went to the FL statute and read the whole thing. I think I know what the intent of the law is; however, IMO, it's not clearly spelled out. I think the intent was to reinforce what is stated in the assn's gov.docs regarding suspension of privileges and the imposition of fines. However, regarding the fines, the legislature was intent on regulating the amount of a single fine and the maximum amount that could be accrued. Since the statute was prefaced with the statement: "IF the gov. documents so provide. . .", IMO the statute only applies to assn's whose gov docs address suspension of privileges and levying fines.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Mary,
I agree with your assessment but when we went to court on enforcement of a certain covenant, the Judge asked the Developer what his INTENT was in writting a certain covenant. After the Developer , under oath, stated his intent, the Judge said that if that was his intent, then he (the Judge) did not percieve that when he read it. So this is where the arguements are born. But thats also where the Statute stating common area sort of removes it from violations of the covs and as you said--"not clearly spelled out"
CharlesH9 (Michigan)
Posts: 123
Posted:
What if there aren't any state statutes or laws regrarding HOA's? Just follow the docs and do what, go to a judge/court when a problem arises?
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By SusannaM on 01/18/2009 6:23 AM
A "guideline" is a guide or indication for present or future action.

. . . snip . . .

That's the way I see it and that's the way I was taught in class.

That may be what you were taught, and that may be your connotation, but I can assure you that a great majority of people will understand a "guideline" to be an optional course of action, whereas a "statute" is not.

It might be worth your while, and prevent slippery situations in the future, for you to revise the terminology somewhat.

In other words, say something like: HOAs can obtain GUIDANCE from FL 720 when their governing documents are silent.

That removes the somewhat "optional" implication of the word "guideline."

They can look to the statute for GUIDANCE . . .

Not "FL 720 is a guideline."

Guidance would direct you to the course of action that should be taken.

A guideline would simply indicate action that may be taken, but it's not required.

Two different meanings. One removes the statutory intent, the other does not.

. . . just trying to reduce confusion

RobertR1 (South Carolina)
Posts: 5,164
Posted:
Charles,
I understand why you are asking and if it were me, I would call the States Attorney General Office for clarification. They may just say call an attorney, I hope not. I would be nice but if all else fails ask them how you could get a free answer to a question from a tax payer that needs some specific response to a specific question. Work on them and ask to be connected to Consummer Affairs if necessary. I take it your HOA is licensed in the State of Michigan as a non-profit association (Check you declaration and Master Deed). Most of the time if you keep at it, you can get an answer.

The option of working it out in the association, if at all possible is also one of the best options for any organization, with or without state statutes. You have CC&R's, is there a Section called enforcement of covenants somewhere in them. If all you have to go on are your documents, that is what you go on. It may work out to how far each party wants to go, well, so be it. Age old question, Waht is it worth?
EllenS1 (Florida)
Posts: 1,148
Posted:
Donna,

Any written word can be interpreted in several ways thanks to the lawyers. I've had over 30 years working in the legal profession, most for top notch firms, and can say two lawyers seldom agree. They help write the laws, contracts or whatever (for which they are paid) and then argue with each other (for which they are paid) to interpret them. I don't mean this to say I would not use an attorney to press my case but wish owners in an HOA would use some common sense and stop parsing words. It should be about being considerate of your neighbors and working things out. What a wonderful world that would be.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Ellen,

Your thinking??? Said like a truely good person.
MicheleD (Kentucky)
Posts: 4,491
Posted:
Quote:
Posted By CharlesH9 on 01/18/2009 1:25 PM
What if there aren't any state statutes or laws regrarding HOA's? Just follow the docs and do what, go to a judge/court when a problem arises?

That's a very good question. But the chances are that the state does have some statutes or regulations regarding non-profits or corporations.

Plus, many areas now have access to some sort of mediation or conflict resolution system.

It's not perfect, but it could be a place to start.
EllenS1 (Florida)
Posts: 1,148
Posted:
Donna,

It may be that I'm just getting old and senile..LOL. If owners in a HOA can't get along and work things out how is there any hope in working together as a nation to say nothing about working things out with other countries? We reap what we sow but I still have a lot of hope for us all.
DonnaS (Tennessee)
Posts: 5,671
Posted:

Ellen,
Yup, you hit the nail on the head. We as a Nation have turned into a me only society. Watching all of these crazy polls, having a 67% and now 71 % approval rating, gives me some new hope that maybe this one guy who is thinking outside of the box, just might bring us back some respect in the world. Like I tell my naysayer Brother all of the time, give the guy a chance, just like we have given to all of the others. God only knows, things cannot get too much worse. This was a true lesson on how we have gotten away from our real values, and that is to value all people.

How does it relate to HOA? We fight over such meanial crud such as a truck in the driveway or a shed or parking on a street. I don't blame the HOA covs and rules. They are made in order to keep some structure but the ones who will defy them---because they want to are where we turn into angry people with each side trying to outpower the other. Okay, off of my soapbox.
CharlesH9 (Michigan)
Posts: 123
Posted:
Yes we are a non-profit corportation
MaryA1 (Arizona)
Posts: 7,043
Posted:
Quote:
Posted By CharlesH9 on 01/18/2009 1:25 PM
What if there aren't any state statutes or laws regrarding HOA's? Just follow the docs and do what, go to a judge/court when a problem arises?

Charles,

Being a nonprofit corp (as most, if not all, HOAs are), you must abide by the state nonprofit corp statutes in addition to any that are specific to HOAs. The nonprofit corp statutes are probably rather inclusive; and, if that's all you have in the way of state law, then you follow them and your gov. docs. Anything else that comes up that is not covered by state law or gov. docs.? Well, that's a good question. I would have to know what the issue is b/4 I could comment.

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