Presidence

Started by GinaA • 7 replies • 1247 views

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GinaA (Florida)
Posts: 9

Posted:

I live in Florida. Does our HOA covenants & restriction take presidence or the Florida Statues?

JW4 (Washington)
Posts: 31

Posted:

Usually state law supercedes the CC&R of an HOA.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Gina,

This is the heirarchy of documents.

1) Federal laws, including ADA,FCC, HUD, and any and all laws.

2) State Laws, including Statutes.

3) County/City codes and laws.

4) The Association Restrictive Covenants ( CC&Rs)

5) The Association Articles of Inc. sometimes called the Charter

6) The Association ByLaws

6) The Association Rules and Regulations

7) Rules and Regulations adopted by the association/Board of Directors

Many times in the Statutes, it will say "IF THE GOVERNING DOCUMENT OR UNLESS THE GOVERNING DOCUMENTS ALLOWS. which means that the State has given the documents the ability whether to chose it's own option on how to follow the statute but if there is no option, then follow the Statute.

MaryA1 (Arizona)
Posts: 7,043

Posted:

I'd like to add a footnote:

Regarding city/county code ordinances: If the code is more restrictive than the CCR restriction then it takes precedence, but if the CCR restriction is more restrictive the code ordinance takes a back seat.

BrianB (California)
Posts: 2,820

Posted:

I will footnote Mary: "restrictive" is the word often used, but sometimes can be misleading based on the wording of the laws in question. More properly, it can be thought that if a lesser law is not in "conflict with the intent" of a higher law, it applies. If it is in conflict with the intent, the higher law rules.

EverettC (Maryland)
Posts: 90

Posted:

To follow up on both Brian and Mary's comments -

as an example, if state law says 5 days' notice must be given of a board meeting, and the covenants say 10 days' notice is required, then you can and should comply with both by giving 10 (or more) days' notiice of a meeting.

If the state law says that 5 days' notice is required, and the covenants say 3 days' notice is required, then you can and should comply by giving 5 days' (ot more) notice.

In an unlikely example, if the state law says that no less than 10 days' notice is required for a meeting, and the covenants say that no more than 5 days' notice is required (i.e., there is an irreconcilable conflict between the two)state law takes precedence, applying the hierarchy previously noted.

Everett

DonnaS (Tennessee)
Posts: 5,671

Posted:

Everet,
You are correct in how you posted that. I am no expert in State laws other than Florida (and certainly no expert there either) But I do know that the State Statutes NEVER give an exact date on such items as meetings, postings and similar statements. What they do say is "NO LESS THAN" and then whatever they are addressing. NO LESS THAN is their favorite phrase and is used probably 50 or more times. So it gives the associatin leeway.

DwightT (Idaho)
Posts: 664

Posted:

I think a better example of what Brian is saying (an HOA rule cannot be in conflict with a higher authority, even if it is more restrictive) can be found in one that many HOAs have run into: satellite dish antennas. Many HOAs have rules that are more restrictive by trying to state that antennas can only be placed in certain areas, or aren't allowed at all. However, this is in conflict with the FCC, so the lower HOA restriction cannot be enforced.

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