Becker and Poliakoff have been suggested as the new attorneys for the Association.  This is a law firm that has vast experience in condo and homeowner association law.  In fact, they put out a column every Wednesday in the Palm Beach Post on condo law.  While this doesn't apply to us as a homeowner association, once in a while they do answer questions about homeowner association law.  The following article was actually taken from their own website and clearly answers the question of the difference between deed restrictions and rules and regulations.

Rule Enforcement Generates the Most Controversy (Community Update 1998), copied from Becker & Poliakoff website 4/15/02

The rules and regulations are usually considered the document of lowest priority in the scheme of statutory and documentary governance of condominium and homeowners associations.  Notwithstanding their inferior status, it is an accepted fact that the enforcement of rules and regulations in multi-residential communities generates more controversy and negative perceptions of community living than any other aspect of this unique form of property ownership.  When someone you do not know tells you what you can or cannot do in your home, or how to do it, friction is sure to arise.

In developing rules and regulations, the first and most important step is to review the governing documents for the board's underlying authority.  Many documents require property owner approval prior to the adoption of rules and regulations.  If such a provision exists, it is valid and must be followed.  Associations must also pay careful attention to the extent of delegated rule-making authority to the board of directors.  For example, if the bylaws grant the board of directors the authority to make and amend rules and regulations concerning the use of the common areas, the board of directors would not have the authority to adopt regulations regarding use of units, lots or other privately owned property.

After the board's authority and any limits thereon have been established, the association must insure that any rules are adopted in a procedurally proper fashion.  For condominiums, 48 hours' posted notice is typically adequate for rules regarding common element use.  Rules regarding unit use usually require 14 days' actual notice to each unit owner (by mail) and posted noticed 14 days in advance as well.  The bylaws may impose stricter requirements.  For homeowners associations, 48 hours posted notice is typically adequate, although a careful review of the governing documents for the homeowners association is important to determine if there are stricter requirements.

Once the rule is adopted, it is typically not enforceable until it is published to the members.  Again, review the documents for specific procedural requirements.  For example, many documents require posting revised rules at a conspicuous location in the community.  Whether or not required by the documents, it is recommended that the revised rules be sent to all property owners and that any revisions to the rules also be given to tenants.  If there are a couple of real estate agents who do a lot of business in your community, provide them with copies of any changes as well.

Unless required in the documents, amendments to the rules and regulations do not need to be recorded in the public records in order to be enforceable.  Some associations record their rules anyway, some do not.  There are pros and cons to both choices.  If existing rules are recorded, amendments should also be recorded.

The Florida courts have adopted certain criteria which must be established in order for a board-made rule to be enforceable.  The courts have held that in order for a board-made rule to be valid:  first, the board must have adequate rule-making authority; second, the rule cannot conflict with any right contained in or "inferable" from the recorded declaration; and third, the rule must be reasonable.

The issue of board authority was discussed earlier. A frequent basis upon which board-made rules are struck down is when the rule conflicts with the recorded documents or rights "inferable" from the documents.  For example, in a 1993 condominium arbitration decision, the arbitrator struck down a board-made rule which defined a "single family residence" as being limited to persons related by blood, marriage, or adoption.  The arbitrator reasoned that the term "family" is one of great flexibility and that a broader definition was inferable from the declaration of condominium.  In another arbitration case, an arbitrator struck down a board rule establishing a minimum lease term of two weeks when the declaration provided that owners would submit a proposed lease to the board for approval which specified the terms and conditions, and if the board did not approve the lease, the board was required to provide another renter on the same terms and conditions.  The arbitrator concluded that under the declaration, the unit owner, and not the board, had the right to set the duration of leases.

Finally, as mentioned above, any board-made rule must be reasonable to withstand legal challenge.  On this front, the courts (and condominium arbitrators) have been a little more favorable toward associations.  Applying the "business judgment rule," the courts and arbitrators have held that they will not substitute their judgment for that of the board of directors.  Therefore, even though there may be other solutions to a particular problem, a board-made rule will usually withstand a reasonableness attack if it is rationally related to the maintenance, management, and operation of the community.

Another common attack against board-made rules (and association restrictions in general) is one of vagueness.  It has been consistently held by courts and arbitrators that a restriction which is vague or ambiguous on its face, or as applied, will not be upheld.  For example, in one case, the association's rules prohibited the parking of "trucks or other commercial vehicles" in the community.  Using the grammatical rule of construction known as the "last antecedent" rule, the arbitrator ruled that the restriction did not apply to pickup trucks, and that it applied only to "commercial trucks."

Notwithstanding the old saw to the contrary, the rules are not made to be broken.  If your association pays close attention to proper procedures and legal limitations in the drafting, adoption, and promulgation of its rules, it will find that rule enforcement is not as difficult as it sometimes seems.

This question and answer came from the Sun-Sentinel.com and was written by Mark Bogen on January 6,2002

Q.  We live in a homeowners association of 1,152 residences.  We have a seven-member board and a paid manager.  It appears that the majority of our board meets quite often with the manager in his office to discuss various issues.

One of the board members has stated that these meetings are illegal, unless residents are invited to participate.  Even though the board is not voting when they meet with the manager, must the meeting be open to the homeowners?

A.  Florida law specifically states that a meeting of the board of directors occurs whenever a quorum of the board gathers to conduct association business.  Since a quorum of the board is meeting with the manager to discuss association business, it is considered an official meeting.

All meetings of the board must be open to all members, except meetings between the board and its attorney with respect to proposed or pending litigation.

You can find the law on this topic at Chapter 720.303 of the Florida Statutes.

The following question and answer was printed in The Miami Herald, by Richard White on December 30, 2001.

Q.  Are boards permitted to have workshop meetings without notice and attendance by unit owners?

A.  This question is continually asked.  The laws for homeowner associations and condominiums require that any meeting at which a quorum of directors gather to discuss association business is considered a meeting of the board of directors.  As such, 48-hour notice is required.  The meeting is open to the members and minutes must be recorded.  There is no provision in the statutes for workshops.

Did you pay a late fee on your last assessment?  Did you know that you can get it back?

The Management Company, at the October meeting, said that they made a mistake in sending out late fee bills in the amount of $25.  They are willing to credit the $25 to your account ONLY IF you write into the management company and include a verification that the payment was made.  Don't they know that they got more than the $75 that was due?  Don't they keep records?  Why should you jump through hoops to get back money that was illegally taken from you?

At the October meeting, according to the newsletter, the Board voted to allow all homeowners to have until November 15 to clear up their accounts without penalty.  My question is, when did the Board vote to impose a $25 late fee?  Can anyone tell me and show which minutes of a Board meeting contains that vote?  Please respond on the Bulletin Board if you know.  Otherwise, I am left with the impression that the Board met in secret to decide how to wring even more money out of this community.

Last modified: June 13, 2001

Send in your comments! email webmaster@palmettopines.com

This website is for information only. Any information presented here will be accurate to the best of our abilities, but you should consult a lawyer for legal advice. The webmaster and hosting company disclaim any liability for the information contained herein, and will not be responsible for the use of said information. All Rights Reserved, Copyright 2001.