When faced with a reoccurring issue in a condominium, the Board of the Directors may want to consider implementing a restriction as a long term solution to the problem. For example, after increasing complaints of loud music at late hours, the Board of Directors may consider a restriction as to when and to what extent music can be played at the condominium. Or perhaps unit owners have complained of the increase in short term rentals in the condominium, prompting the Board of Directors to consider a restriction on the amount of times a unit may be rented throughout the year. How are such restrictions implemented?
Condominiums are primarily governed by Florida Statutes, the condominium’s governing documents (declaration, by-laws, articles of incorporation), and their rules and regulations. Generally, declarations supersede all other governing documents. Thus, when considering restrictions, the Board of Directors are often faced with the choice of either implementing restrictions via either an amendment to the declaration requiring a unit owner vote, or revising the rules and regulations, which generally can be accomplished by the Board of Directors. But which is the right choice? As always, it depends.
On the one hand, if there is a high risk of a unit owner challenging a restriction, the Board of Directors may want to consider implementing a restriction via an amendment to the declaration, as Florida courts are more likely to enforce such restrictions. Indeed, such restrictions are presumed to be valid and enforceable unless and until they are shown to be “arbitrary” or “capricious.” Some Florida courts have even opined that “unreasonable” restrictions in a declaration may be enforced, so long as they are not “arbitrary” or “capricious.”
On the other hand, if a restriction is implemented via an amendment to the rules and regulations of the condominium, it is subject to much more scrutiny if challenged. To be enforceable in the face of challenge, the rule must not contradict any express right or reasonably inferred right conferred to owners in the declaration of condominium. Second, the rule must be shown to be reasonable, which means the rule must be reasonably related to the promoting the health, safety, and welfare of the unit owners, as well as be applied and enforced uniformly.
With that said, amendments to the declaration are often much more difficult and costly to pursue than amendments to the rules and regulations. While every condominium’s governing documents are different, amendments to a declaration generally require at least a majority vote of unit owners in favor of the amendment. Some governing documents may even require a vote by a super majority of unit owners. Thus, implementing a restriction via amendment to the declaration will likely require considerable efforts to galvanize support among unit owners. Furthermore, once a restriction is incorporated into your declaration via an amendment, it will be just as difficult and costly to amend the restriction in the future. As such, restrictions that deal with issues that require flexibility, such as the operating hours of a pool, may be better suited for a rule, which generally only requires a vote by the Board of Directors.
But that is not the end of the matter. The Board of Director’s decision to either amend the declaration or the rules and regulations might be also influenced by Florida Statutes. For example, Fla. Stat. § 718.110(13) expressly limits amendments relating to rentals as follows:
(13) An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.
In addition, per Fla. Stat. 718.112(2)(a)(1), changes to rules, or implementing rules that affect unit use, require a 14 days notice to the owners of the Board meeting where such rule will be considered and put to a Board member vote.
Ultimately, regardless of whether the Board of Directors is leaning towards amending the declaration or the rules of regulations, you should always consult legal counsel, as the decision is a complex one that requires the consideration of multiple factors and issues.