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HOA Governing Documents Explained

Q: I recently purchased a home in a development that is under a homeowners’ association. When I purchased, I received “the documents” for our community. I am confused how these documents relate to each other and what the different documents are supposed to mean. Can you clarify the differences between the documents for me? I was also wondering how the “rules” are created. Is this something that homeowners are consulted on? (G.M., via e-mail)

A: According to Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act, the “governing documents” of the community include the declaration of covenants, the articles of incorporation, the bylaws, and the rules and regulations.

The declaration is much like your “constitution” and sets forth the basic covenants and restrictions for the community. For example, covenants include the obligations to pay assessments and be a member of the association arising from the declaration. The requirement that your lot can only be used as a single family home, or can only be rented for certain minimum periods arise from the declaration are examples of restrictions.

The articles of incorporation, called the “corporate charter” in many states, establishes the association’s existence and basic structure and governance. It may address important powers, such as the association’s authority to borrow money.

The bylaws (which I often refer to as “the corporate housekeeping rules”) govern the operation and administration of the association. Bylaws will typically address the composition of the board, how meetings are called, and numerous other corporate procedures.

The rules and regulations usually supplement the restrictions in the declaration, and typically address matters of everyday policy, such as parking or use of the community’s recreational facilities.

In addition to “do and don’t” rules, most HOA’s also have what I refer to as “administrative rules”. For example, the Homeowners’ Association Act grants the board authority to adopt certain rules governing the frequency, duration, and other manner of member statements during board meetings. An official records inspection rule is another example of an “administrative rule”.

The various governing documents are each subject to their own amendatory procedure. Typically, declaration amendments require the highest level of owner vote, whereas rules are most often amended and created by the board of directors. Rules must be reasonable and cannot conflict with the rights provided for in the other governing documents. Amendments to all governing documents must be recorded in the public records to be valid.

The bylaws usually establish the board’s rulemaking authority, and may include limitations on this authority, such as a board only having the ability to create rules governing use and operation of the common areas.

The law does not contain any requirement for owners to approve rules, which are most often adopted by the board, assuming adequate rulemaking authority have been granted to the board. However, owners have the ability to attend board meetings where they can voice their opinions and raise any concerns regarding any items the board plans to vote on, including rules and regulations.

Q: My neighbor wants to erect a flagpole in his yard. I am concerned that it will block my property’s view. Is there anything that can be done about this? (S.S., via e-mail)

A: Probably not much.

Section 720.304 of the Florida Homeowners’ Association Act provides that homeowners may erect freestanding flagpoles of no more than twenty feet in height on any portion of their property, regardless of provisions in the governing documents to the contrary. However, the flagpole cannot be built on an easement, and must not obstruct sightlines at intersections.

The law also lists certain flags that may be displayed from the flagpole, again regardless of contrary provisions of the governing documents, including a United States flag, an official flag of the State of Florida, or of the United States Army, Navy, Air Force, Marines, Coast Guard, or POW-MIA.

The law does state, however that flagpoles and corresponding flags are subject to all building codes, setback requirements, and all other applicable governmental restrictions. If your community’s covenants pre-date the enactment of these laws, there is an argument that they cannot be applied retroactively. However, that is far from settled on this topic.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

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