Question: Our homeowners’ association documents say that the board can adopt rules, but don’t spell out how to do it. What procedures that must be followed? Can the board adopt a rule at a regular meeting and then enforce it the next day without providing any special notice to the members? (R.L. by e-mail)
Answer: There is very little in the Florida Homeowners’ Association Act that addresses the procedure by which rules are to be adopted. Particulars regulating rule adoption and notification will largely be addressed in the association’s governing documents.
I have seen provisions that require the board to provide notice of an effective date a certain number of days before a rule can be enforced. I have also seen provisions that state that the rules cannot be enforced until a copy of the newly adopted rules is provided to all members. I have even seen provisions that allow the board to adopt and enforce rules, but then provide the members with the right to veto those rules. None of this is addressed in the Act.
The Act does not say that the board is not automatically given the authority to adopt rules. That authority must flow from the governing documents. In some homeowners’ associations documents I have reviewed, (especially older documents), the board is only given authority to adopt rules regulating the common areas and procedural rules pertaining to the administration of the association. This would preclude the board from adopting rules governing the parcels (lots and homes).
Unless otherwise provided in the governing documents, procedural rules and regulations regulating the use of the common areas can be adopted at a regular meeting of the board after providing the notice required by the association’s bylaws (which is typically 48 hours posted notice).
Where the governing documents give the board rulemaking authority as to the parcels, the Act requires that the board first provide the association members with mailed or delivered notice at least 14 days in advance of the meeting. The notice must specifically state that rules regarding parcel use will be considered, but there is no requirement to provide a copy of the proposed rules (though there may be a requirement to do so in the governing documents).
While the association is not obligated by statute to send out a copy of new rules after adoption, common sense dictates that the best way to gain compliance is to let members know what rules have been adopted by providing a copy. It is also a basic due process concept.
These same principles apply to architectural guidelines adopted by the entity authorized to do so in the governing documents (usually the board of directors, sometimes the architectural review committee). Since architectural guidelines dictate what an owner can or cannot do on his or her parcel, 14 days advance written notice must be given.
Rules that are not adopted under proper authority or by following proper procedures are subject to legal challenge. If the board has a question about rule adoption or enforcement, the association’s legal counsel should be asked to provide guidance.