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Florida Condo & HOA Legal Blog News & Updates on Condo & HOA Laws & Legislation in the State of Florida

What Rules and Regulations are Enforceable?

Posted in Covenant Enforcement/Violations, Operations

I am often asked by readers whether guest restrictions are enforceable. Residents often want to know whether the Association can require them to notify management when guests arrive or whether it is appropriate to require guests to register with the Association. The answer to these questions is, almost inevitably, “it depends”. Readers are not usually satisfied with this answer and I can certainly understand why. Nonetheless, there are so many factors that need to be taken into consideration in each particular set of circumstances that makes answering any other way disingenuous. The first point in the start of the analysis is the source of the rule or the policy sought to be enforced. There are different standards for restrictions contained in a document of high priority (such as the Declaration of Condominium or a Declaration of Covenants and Restrictions) as opposed to documents with a lesser priority (such as Board policies or Board-made rules). Generally, rules made by an Association are subject to a three (3) pronged test for enforceability, to wit:

  1. The Board of Directors must have authority to promulgate the rule (authority granted by the Declaration of Condominium or other governing documents);
  2. The rule cannot conflict with any of the rights conferred by any of the documents of higher priority, whether those rights are expressly stated or reasonably inferable; and
  3. The rule must be reasonable (explained as rationally related to a legitimate objective of the Association).

In Florida, there must be some authority for a Board of Directors to create or promulgate rules and regulations regarding use or occupancy of the property. Some governing documents give the Board of Directors plenary power to adopt, modify or otherwise change use restrictions. Other governing documents limit the Board’s authority to rule making regarding use of the common areas or common elements and still other governing documents require a membership vote to enact new use restrictions. Section 718.112(2)(c), Florida Statutes and Section 720.303(2)(c), Florida Statutes, requires both Condominium and HOA Boards to deliver notice of the Board meeting to the members at least fourteen (14) days in advance if the Board intends to adopt, change or otherwise consider rules regarding the use of the unit or the individual parcel. Consequently, the first step in determining whether a rule is enforceable is to determine whether the Board of Directors acted within the scope of its authority and whether it followed the procedures required both in the governing documents and applicable Florida law. The second part of the test requires an analysis of the existing documents that have priority over rules and regulations. Rules cannot conflict with the governing documents. It is relatively easy to determine whether a rule contradicts an expressed right or privilege set forth in the documents. For example, if the Declaration prohibits owners from maintaining more than two (2) pets on the property, the Association cannot enact a rule that prohibits pets altogether. An amendment to the Declaration is required to eliminate an owner’s right to maintain one or two pets on the property. Determining whether a rule contradicts an inferred right is far more complicated. Finally, rules cannot be arbitrary or reflect capricious decision making. The third part of the test requires the rule to be “reasonable”. Obviously the term “reasonable” is much like the term “beauty” – everyone has a different standard. Accordingly, once the first two steps are satisfied, it is necessary to evaluate whether the guest rules or guest restrictions are based upon some legitimate objective. The State of Florida addressed guest registration rules in a Declaratory Statement issued several years ago. The Association involved required all guests to sign in with a security guard upon entering the property and further required information on an Overnight Registration Form to register guests staying overnight. When a unit owner challenged the Association’s “need to know”, it emphasized that the rule served an important safety function, assisted in enforcement of other rules requiring use of licensed and insured contractors and contributed to making the condominium “more comfortable, safe and contented experience for all concerned”. The Division concluded that the rule advanced legitimate objectives of the Association and found that registration requirement did not violate the Florida Statutes. The Division has had the opportunity to consider many rules enacted by community associations over the past eleven (11) years in connection with its arbitration program. We will include more examples of rules that have either been upheld or rejected, from time to time.

  • David Lane

    I undeerstand that condo boards can formulate and pass rules as they deem appropriate. Are there any rules that would be more appropriate or would need to be part of the declaration or bylaws. For example could a board simply make age restrictions or restrictions on guests rules and not put them in the other higher documents?
    RESPONSE: I hate to say it, but … it depends. Typically age restrictions are found in the recorded documents. However, many associations have the authority and do enforce guest restrictions based on board-made rules.

  • Tom Pacyna

    Hi, If a condo requires guests of owners or guests of tenants to register with the Association via guest forms, can the Asssociation collect background information on the guests? I know Associations can collect background information on tenants, but can Associations collect background information on a unit owner’s guest(s) or a tenant’s guest(s)? Thank you.
    RESPONSE: Again ….. it depends. Some associations do obtain background information regarding guests that plan to stay on the property for an extended period of time (typically more than 30 days).

  • Marie

    Our Documents & By-Laws state pets are okay for owners. The Board in a closed meeting made a ruling that dogs are no longer allowed … cats are ok. Dogs are no longer allowed because a couple owners didn’t pick up after them or they had ‘accidents’ in the elevator because they were old and couldn’t hold it until they got outside. At a recent meeting, motion was made and seconded for the Board to take a ‘survey’ of owners to see how they felt…results were 45 for 50 against with some abstaining. Is the no dogs enforceable?
    RESPONSE: Rules shouldn’t be made, considered, adopted or repealed in any closed-door meetings. There may be circumstances that warrant a closed-door meeting with counsel to discuss pet policies or enforcement if there are pending disputes however.
    Nonetheless, if the board has rulemaking power and this rule is within the board’s rulemaking power, the owner referendum doesn’t overrule the board rule. I am concerned about the provision you cite to in the documents – you should check to see if the new board rule contradicts those provisions.

  • LaminateLover

    Thanks for the blog. From your experience, why do boards pass rules & regulations that violate the Declaration? Are they opening themselves up for any legal action by owners if they do? Why wouldn’t they consult their attorney before updating the rules & regulations? I recently installed laminate flooring – my HOA’s rules & regulations say that second floor unit owners can’t. However, the declaration states that all owners can decorate their floors as they see fit and does not have any specific language restricting the types of flooring.
    RESPONSE: Most boards are not aware of rulemaking limitations. I do not see board members with “bad intent”. They simply are not familiar with all of the nuances associated with rulemaking.
    Rules regarding hard flooring installations are not unusual. In fact, it would be unusual for a declaration to say “owners can use any floor substance they want” without any approval process or soundproofing requirements.

  • Arthur Grimes

    Hi Lisa. I have been reading a few of your articles. You made a comment in What Rules and Regulations are Enforceable on 11 May 2011, that “Rules cannot conflict with the governing documents. It is relatively easy to determine whether a rule contradicts an expressed right or privilege set forth in the documents. For example, if the Declaration prohibits owners from maintaining more than two (2) pets on the property, the Association cannot enact a rule that prohibits pets altogether. An amendment to the Declaration is required to eliminate an owner’s right to maintain one or two pets on the property. Determining whether a rule contradicts an inferred right is far more complicated.” I agree that rules should certainly not contradict the covenants. I would argue, in fact, that no board should be allowed to enact rules. Any change should be put to the owners for approval. That said, is it an understood legal principle that rules cannot contradict covenants? Or was this enforced through case law? Yes, and leave it to Florida to settle on the so-called ‘resonableness standard’. Arthur
    RESPONSE: Thank you for your comments. There are many owners/residents that feel the same way – why leave this power to the board? For the most part board rules are to advance owner interests, not solely to limit activities. The Courts came up with the 3 part test I mentioned.

  • KELLI

    If the Rules and Regulations are to follow what is written in the Declaration (Covenants), than the Rules and Regulations should not be able to be changed by the Board of Directors (at will) without the permission of the Owners.
    The Covenant documents in most cases cannot be amended without 75% Owner approval, and in my opinion neither should the Rules and Regulations! And therefor the Florida Statutes which allow Boards to change Rules and Regulations WITHOUT Owner approval needs to be changed immediately. . .
    Why have no attorneys noticed this error in the Florida Statutes and gone after it!
    Owners are being harassed and fined on Rules and Regulations that go beyond the Covenants and this is WRONG. . .
    As I write – I am on a Committee to update the Rules and Regulations and I am having a hell of time getting the other Members and Board to understand that they must inforce what is already in the Declaration of Condominium. . . And not to continue to make-up their own Rules. . . For instance: for years the R&Rs have stated that dogs are NOT allowed anywhere on the property except the patch of grass they are allowed to relieve themselves on. . . The Declaration states that dogs are allowed ‘everywhere’ inside or outside as long as they are ‘carried’ inside and on a leash outside. . . .
    What say you?
    RESPONSE: The board-made rules cannot conflict with rights afforded by the declaration of condominium.

  • Kathy Ambrose

    If there is nothing in the Condo Documents (Declaration, By-Laws, or Rules and Regulations) that sets a limitation on how long guests can stay, and there is nothing stating that if they stay over “x” days that a background check is mandatory, can a Board insist the unit owner pay a $100 “screening fee,” and insist that a guest fill out an application (which contains bank information, social security number, etc) which is actually meant for leasees/tenants?
    Additionally, while I have read in the Florida Statute that there is a cap on such fees of $100, our Declaration of Condo says, for sales and leases only (nothing about guests), no more than a $50 “screening fee” must be deposited and delivered simultaneously with giving notice of sale of lease, for the purpose of defraying the Association’s expenses. Before the the new Property Management company can charge it’s fee of $100, doesn’t the provision need to be amended? An amendment, per the Condo Docs, must be recorded to be valid.
    RESPONSE: The information on this site is general and for informational or educational purposes only. We cannot give legal advice as to any particular set of circumstances and nothing on the site is a substitute for legal advice.
    You are correct that amendments to the declaration, bylaws and articles of incorporation are required to be recorded in the public records of the applicable county.

  • chuck2553

    In our convenants we have a claus on renting it state you can rent for a min of 6mths only once every 12 mths the board wants to change it to a min of 12mths can they do this without home owners voting

  • http://www.facebook.com/kitty.gleit Kitty Gleit

    After the election of a new board of association, one director resigned, the next one in line by votes received is not interested in filling that position. can the board of directors chose anyone they like, or have a new election for that position.  they have 2 people who would consider the vacant position, should they just vote for one of them by secret vote?

  • http://www.floridacondohoalawblog.com/ Lisa Magill

    Generally the remaining board members can appoint someone to fill a vacancy caused by a resignation.  That is not one of the votes permitted to be kept secret in a condominium association.  Replacing the director should be considered at a properly noticed board meeting.

  • http://www.facebook.com/profile.php?id=1563923610 Annette Novelli

    I have recently been asked to take a small outdoor storage unit off of my balcony. I contacted the HOA of my condo and explained that I thought I was working within there rules. In the HOA rules it states only “furniture expressly made for outdoor use” is allowed on the balcony. I explained that indeed this furniture was expressly made for outdoor use. They disagreed. I then asked them to provide me with a list of acceptable furniture that was allowed on my balcony. There reply was that no list existed and that it would be best to call when I plan on putting something on my balcony so they can make the decision of whether or not is is indeed expectable. Seems to me these decisions are being made arbitrarily. Just wondering if this is indeed something they have the power to do or if there should be some sort of list. 

  • http://profile.yahoo.com/GQOM53BPFZLJS25AL35BYDKQZU annette

    I have recently been asked by the HOA to remove an outdoor storage unit from my condo balcony. I thought I was within the HOA rules that state “only furniture expressly made for outdoor use” is allowed on the balcony. I called the management company with my question and they stated this did not qualify as something that is allowed on the balcony. I then asked for a list of furniture that does qualify. They stated this does not exist. Puzzled, I asked how they were deciding what qualified as outdoor furniture. They explained to me it would be best to call them on an item basis before placing anything outside to get the OK from them. This seems like a very arbitrary way to make decision. Wondering if this is an expectable practice?

  • lef2011

    I can only speak for Massachusetts, but I am sure its this way or similar in most state laws. Condo rules are  broken into two sections; Rules And Regulations and the Bylaws that are contained in the Master deed and/or the declaration of trust.

    Rules And Regulations are a set of rules that a trust  and/or a managing agent make regarding “Common Area” if you do not follow these rules you can be fined under “Common Expense”. If you choose not to pay the fine a lien and even foreclosure can be imposed. The Trustees/Managing Agent are empowered by a vote of unit owners to make decisions that are best suited for all, and make decisions in a fiduciary manner. In Massachusetts the Rules And Regulations document has to be filed with the County Registry Of Deeds for it to be valid.

    The Bylaws should contain rules that are relevant to the inside of ones unit. For example; Guest policy, smoking policy and a pet policy to name a couple. If these sort of rules are not in place unambiguously written into the bylaws you cannot be fined as ”Common Expense” fines because the Trustees/Managing Agent do not have that power. In Massachusetts to amend the bylaws of the Master Deed/Declaration of trust a minimum of 75% of unit owners need to vote on it then the new amendment must be filed with the County Registry Of Deeds.

    Hope this helps…

  • Richard Groff

    Does this hierarchy of authority include standards for alterations in conflict with the declaration?  Are they void or voidable?

  • sans soren

    We have family member of a condo association resident who needs medical caregiver assistance being forced to submit a $100 fee for parking along with a criminal background check, with credit, work, and living history submitted or will have car towed. The VP of the association, made remarks regarding making false documents of what unit (was a typo from a staff member) vp was hostile, and treated family member with an iron fist. Our family is dealing with a rare illness with our 80 year old parent who has lived alone at the condo for 28 years. We have no problem paying a fee and submitting a criminal check, we do have issue with submitting financial information (no financial interest in property). Not sure how to proceed.

  • Theresa

    I live in a condo where the bylaws clearly state only carpet is permitted in the main living areas. No tile or wood. It was brought to my attention that my neighbor has had parquet wood flooring in her unit. We would like to install wood flooring with sound reduction rubber underneath. Since that bylaw was broken and never corrected, it that by-law still in effect? I was told that an association has two years to correct the situation or that by-law no longer exists. Anyone have an answer?