Avoid a Gridlock – Educate, Communicate & Plan

When strangers come together as a new board of directors for a community association, they may find they have such differing views on what is best for the building that they can feel as though they are in a no win scenario.  While working to find a creative solution to the problem is something we as lawyers work on every day, it is not always quite as natural for board members, especially when they have never served in this capacity before.

Serving as a new board member has, among its challenges, a steep learning curve.  I think it is safe to say that condominium law and governing documents for a given community can, at times, be less than easy to understand.  Community Association law uses some unique terminology and there are sometimes subtle, but hugely important, differences on what something means depending on whether a particular word is used.  Consider the terms officers and directors.  While many people understand that a director is someone who is elected by the membership to serve on the board of directors and officer is a position that a director may hold, others may confuse the two terms.  Reading the Condominium Act, that person may read the provision that states that “Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration” and misunderstand that directors can be removed at any time on a board vote.

Another common confusion that arises is the use of the word “By Laws” instead of Declaration.  These are two very different documents and certain provisions must be in the Declaration in order to be valid.  Similarly, the use of the word “maintenance” instead of the word “assessments.”  A review of the Condominium Act will show that nowhere is an owner required to “pay maintenance” but they are required to pay “assessments” and their unit can be liened for failure to pay “assessments” timely.

When you couple the unfamiliar language that can be used in community association law, with the misunderstanding of what the documents require and years of a particular administration doing something a certain way, a brand new slate of directors intent on making changes can clash spectacularly and cause what Washington D.C. deems “gridlock.”

The first thing to do in a situation like this is to make sure that everyone becomes educated on the issues.  The statutes require “newly elected or appointed directors to certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.” Instead of this certification, the newly elected or appointed directors may attend an educational curriculum administered by a division-approved condominium education provider and submit a certificate of having satisfactorily completed the educational curriculum.

If new board members feel comfortable reading and certifying their knowledge of all of the information after reading the required documents, then by all means, they should do so.  However, for those who feel less than comfortable with the self-teaching that could be required in the first option, attending a class is a great option.  Many free classes are available to new board members and there are a myriad of ways to attend.  Live classes not only offer the opportunity to ask questions, but also to listen to other people ask questions.  Many times, this can be just as educational.  Also, if the new board of a condominium goes together to the class, it can provide a team building opportunity as well as ensure they are all getting the same information and can understand where the others are coming from.  It is important also in helping people to understand that just because the building next door does something in a particular way, does not mean that the law allows for this, or that your building should be doing it.  From a management perspective, attending these classes with new board members is also helpful to create realistic expectations and help all parties understand the division of labor and responsibilities that exist between a manager and a board.

Once the new board is educated, the communication is the key to understanding and working together.  Holding frequent board meetings to discuss condominium issues will help not only inform the unit owners, but also keep the lines of communication open on a regular basis.  The new board may find that frequent exchanges of ideas and concerns will facilitate an understanding that they are all working toward a better community and that there can be many paths that lead to the same place.  While email is a useful tool for our everyday lives, new (and experienced) board members should refrain from email exchanges when possible, as that can inadvertently lead to email decisions.  The statutes now expressly prohibit email “voting”, even though that was not necessarily authorized before.  The better goal is to have the discussions on the issues in front of the unit owners that may want to attend the meetings, rather than arrive at the meetings only to state the motion, hold a summary vote, and close the meeting.

Finally, creating and agreeing on a list of priorities can help shape the tenure of the new board.  As we all know, time flies when you are having fun.  Although a year can seem like a long time, in the world of projects, construction, maintenance and day to day operation of a condominium, a year can go by much faster than many people expect.  Rather than wasting the year debating on which project is most important, taking the time at the beginning of the year to decide the order and importance of necessary projects, maintenance, and issues to address can not only help shape the budget and expenditures in a fiscally responsible way, but also help temper unrealistic expectations of owners and board members alike.

In summary, educate, communicate, and plan before acting.

 

Originally posted on floridacondohoalawblog.com. Written by Lilliana Farinas-Sabogal

 

Different Laws Govern Associations

Q: My community has both single-family homes and townhouses. A question has arisen as to whether the laws that govern condominium associations or homeowners’ associations apply. Can you clarify this for us? (B.K., via e-mail)

A: The answer would depend on the language of the governing documents for your association. Condominiums are governed by Chapter 718 of the Florida Statutes, known as the Florida Condominium Act. In order for the property to be a condominium, it would have to have been created pursuant to a recorded declaration of condominium.

Homeowners’ associations are governed by Chapter 720 of the Florida Statutes, known as the Florida Homeowners’ Association Act. Property subject to this law does not have to be created in a specific statutory manner, but is usually created by a declaration of covenants. The statutory tests to determine whether a community and its association are governed by Chapter 720 are whether the association is responsible for the operation of a community where the voting membership is made up of the parcel owners or their agents, or a combination thereof, where membership in the association is a mandatory condition of ownership and where the association is authorized to impose assessments and record a claim of lien against the parcel if the assessments go unpaid.

Condominiums and communities governed by homeowners’ associations take many forms, so you cannot tell just by looking at the property. For example, some condominiums are freestanding buildings (typical single family home) where the units are actually plots of land or the footprint of the building. Conversely, some homeowners’ associations govern townhouse or villa-style dwellings where there are multiple dwellings contained in each building that “look like” condominiums.

Q: Recently, our condominium board discussed replacing our pool deck. Our pool deck is currently made up of composite decking material. The board wants to install a cement deck. Doesn’t this require a vote of our unit owners? (K.M., via e-mail)

A: Possibly. The Florida Condominium Act states that there shall be no material alteration or substantial additions to the common elements except in the manner provided in the declaration. If the declaration is silent, then such material alterations or substantial additions must be approved by a 75% vote of the total voting interest of the association.

The seminal case defining “material alterations” comes from a 1971 decision from Florida’s Fourth District Court of Appeal called Sterling Village v. Breitenbach. In Sterling Village , the court stated that if the change “palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan or existing condition in such a manner as to appreciably affect or influence its functions, use or appearance,” such a change was a material alteration.

Under the test set out in Sterling Village, replacing a composite deck with a concrete deck would appear to be a material alteration and may or may not be subject to owner approval based on the language in your declaration. For example, many declarations allow a board to spend a certain amount of money on material alterations before triggering the requirement for a unit owner vote.

There is also an exception in the law. If an alteration is considered “necessary maintenance” to the condominium property, the owner vote is not required. Convenience and cost savings are not sufficient legal criteria to support changing the common elements without a unit owner vote based on the necessary maintenance exception to the material alteration rule. On the other hand, changes necessary to comply with the law are generally permitted under the necessary maintenance exception. Use of alternative materials always presents a close question. Generally speaking, decisions in this context should be predicated on both a legal opinion, as well as demonstrable evidence from a credible source (for example, an engineer) that the change is “necessary” as that term is used in the law.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. 

Election Voting Assistance

In the Condominium Act, it is very clear that only a unit’s owner can vote in election. That means that an election can’t be decided through the use of proxies (limited or general). There is an exception for associations with fewer than ten units who have voted to follow a different voting procedure.  In such an instance, the procedure set forth in the by-laws would be followed and if proxy voting is permitted in elections then the condominium could do so.

The question which gets asked a lot is whether a person holding a power of attorney can vote in an election.  The answer is no.  The statute confirms that when an owner needs assistance in casting their election ballot they can get it.  The key however is the definition of “need”.  Going on vacation or delegating to an adult child, realtor or tenant for convenience simply is not the “need” required by the statute.  The assistance needed must be due to blindness, disability or inability to read or write. In those circumstance the voter may request the help of a person of their choosing (e.g., family or friend) and they are not obligated to use an association employee, manager, or even a board member. The help provided is not voting for the person.  On the contrary it is to facilitate the owner voting for themselves by reading the entirety of the ballot (instructions and candidate names as written) to them.  The reader is not supposed to apply any tone or emphasis aimed at gaining a particular vote for one candidate over the other.

You may wonder where voting certificates factor in to the equation.  Voting certificates are only required if the governing documents require them.  For those that do they can impact units owned by spouses, multiple un-married persons, corporations, or any combination thereof.  In such an instance, once the voting certificate is complete and turned in, should the designated voter require assistance, the same criteria noted above would apply.

Originally posted on floridacondohoalawblog.com. Written by Marilyn Perez-Martinez

Names of Fellow Unit Owners Is Public Record

Q: I am requesting from the association office the names of each unit owner in my condominium association. Is the office legally required to furnish that list to me? (J.G., via e-mail)

A: If your request for the names of each unit owner was made in writing, the association is legally required to make them available to you for inspection or copying within 10 working days after the association received your written request. If the request was not made in writing, there is not a similar legal requirement.

The Florida Condominium Act provides that a current roster of all unit owners is an official record of the association that must be maintained by the association. Under the Act, the association is also legally required to make the current unit owner roster available to any unit owner for inspection or copying (at a reasonable expense) at all reasonable times on the condominium property (or otherwise within 45 miles of the condominium property or in the county where the condominium property is located) within 10 working days after receipt of a written request. Inspection and copying of the current unit owner roster would be subject to any reasonable rules regarding the manner and frequency of such inspections and copying duly adopted by the Board. The association may, but is not obligated to, offer the option of making the current unit owner roster available to you online or by e-mail.

The failure of the association to make the current unit owner roster available to you for inspection or copying within 10 working days creates a rebuttable presumption that the association willfully failed to comply with this legal requirement. A unit owner who is denied access to the current unit owner roster, or any other official record, is entitled to the actual damages or minimum damages of $50 per calendar day up to 10 days beginning on the 11th working day after the date the written request was received by the association.

For anyone who is concerned about personal information of theirs being shared with other unit owners, the Act protects certain telephone numbers, e-mail addresses, and other “personal identifying information” of unit owners, including social security numbers, driver’s license numbers, and credit card numbers. Although the law does not clearly define what is and is not “personal identifying information,” unit owner names, their unit numbers, and their mailing addresses are not personal identifying information exempt from official records inspection and copying requirements and are readily available online from the county property appraiser.

Q: My elderly mother lives in a neighborhood with a homeowners’ association. She is not really computer savvy. All of the newsletters and information alerts that the HOA sends out are by e-mail, so she is not in the loop as to what is going on in her neighborhood. This seems very unfair to me. Is this legal? (L.G., via e-mail)

A: It is not illegal.

Condominium, cooperative and homeowners’ associations in Florida must send official notices (for example the annual meeting notice) by U.S. Mail or hand delivery. However, if a property owner signs a consent form, the association may send them official notices by electronic transmission, typically referred to as e-mail.

In recognition of the prevalence and convenience of electronic communication, the law was also amended a few years ago stating that proxies for association meetings could be sent in by e-mail (scanned attachment) regardless of any provision in the association’s bylaws to the contrary.

For better or worse, the days of the mailed out “Association Newsletter” are reaching their end. There is no legal requirement for these communications and most associations use the means that is both easiest for the association, and most convenient for the majority of its members. In most cases, this involves either “e-mail blasts” or website postings, with no paper involved.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Enforcement Tool Belt – Fining/Suspension

In the proverbial “tool belt” of enforcement options available to an association for violations of the rules and regulations, the imposition of fines and suspensions is one that we frequently get questions about due to the procedures that must be followed.  If the process is not followed properly, it may result in invalidation of the fine or suspension, and can also result in potential legal exposure to the association.

Whether you live in a condominium, cooperative, or homeowners’ association, owners and their guests, tenants and invitees are bound by the association’s governing documents, which may include the declaration, articles of incorporation, bylaws and rules and regulations.  When owners or their guests, tenants or invitees violate the governing documents, associations have certain remedies available to it under Florida law.  In many circumstances, a friendly letter from the community association manager is sufficient to resolve the matter.  In other circumstances, a more formal “notice of violation” will bring an end to continuing violations.  However, in some instances further action is required to enforce a violation.

Florida law for condominiums, cooperatives, and homeowners associations authorizes an association to assess fines and to levy suspensions to enforce the governing documents of a community.  All three types of associations (condominiums, cooperatives, and homeowners associations) have the ability to impose reasonable fines, or to suspend for a reasonable period of time, the right to use common elements, facilities or association property for failure to comply with provisions of the declaration, the bylaws, or rules and regulations of the association.

Sections 718.303 (for condominiums), 719.303 (for cooperatives) and 720.305 (for homeowners’ associations) provide fining and suspension as a remedies available to the association, and also provides the procedures that the association must follow to enforce such remedies.

Generally, the board must appoint an independent committee (often called the fining committee or compliance committee). The committee cannot be comprised of officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If a violation is to be considered for a fine or suspension, the board meets at a duly-noticed meeting, reviews the matter, and “levies” a fine or suspension, if deemed appropriate. After the board levies the fine or issues a suspension, the person to be fined is then entitled to a hearing before the committee. Notice must be received at least 14 days in advance of the hearing. If the association does not hear from the party to be fined or suspended, or the individual does not actually appear at the hearing, the hearing should still be held. At the hearing, the committee must afford basic due process and allow the accused to be heard, state their case, and challenge evidence against them. The committee must then either “confirm” or “reject” the fine or suspension. If the committee rejects the fine or suspension, the matter is over. If the committee confirms the fine or suspension, the board then “imposes” it. After the board has imposed the fine or suspension, a letter should be sent advising of the amount of the fine and the date due.  With regards to a suspension, a letter should be sent advising the length of the suspension.

Originally posted on floridacondohoalawblog.com. Written by Jennifer Horan

The Subrogation Situation

With increasing frequency, insurance companies that provide unit owner insurance are suing community associations to recover payments made to the unit owner that are related to water leaks in the unit. The problem with these lawsuits is two-fold. First, the insurance companies are waiting years to bring them, although still within the statute of limitations for the lawsuit, but nonetheless to the detriment of the community association’s defense of the case as records and memories fade overtime. Secondly, the cases are many times brought in small claims court as a result of the insurance company seeking at most $5,000.00 in “reimbursement” from the community association. The issue with defending a small claims court case is that the cost of defending the lawsuit can be more than the amount the insurance company is seeking which puts pressure on the community association to simply settle. The basis of the insurance company’s lawsuit against the community association is negligence; the insurance company claims that the association had a duty to take some action, failed to take the action and such a failure led to loss that resulted in the insurance payment to the unit owner.

What can be done to limit a community association’s exposure to such lawsuits? First, the community association should consult with its attorney to determine if an amendment to the declaration for the association should be adopted related to subrogation. Next, community associations need to promptly respond to complaints related to leaks and properly document repair work in a detailed manner so that the location and extent of work is easily understood. The documentation related to repair work should be kept for seven years and be readily accessible. Community associations should perform routine maintenance and inspections of property that the association is required to maintain in order to identify in advance of a water leak areas of needed maintenance. Lastly, anytime there is a water leak or other casualty to unit, the association must thoroughly document, in writing, what happened to cause the leak, what was done in response to the leak and all communications between the association, the unit owner and the unit owner’s insurance company and adjuster. Such documentation should be shared with the community association’s attorney and kept in the association’s official records.

Originally posted on floridacondohoalawblog.com. Written by Marielle Westerman

Penalties for Financial Reporting Violations

In 2018, the Florida Legislature revised a provision within the Condominium Act concerning financial reporting.  Specifically, if a condominium association fails to comply with a request from the Division of Condominiums, Timeshares and Mobile Homes (the “Division”) regarding providing a unit owner with a copy of the annual financial report, the condominium association, as a punishment, may not waive the financial reporting requirement for the fiscal year in which the owner’s request was made, or the following year.  The new law clarifies the time frame, whereas the previous version of the law did not specify how long the association was prohibited from waiving the financial reporting requirement.  Note that despite what an owner may claim, the penalty only applies when the association fails to respond to a request by the Division to provide a copy of the financial report to a unit owner.

Originally posted on floridacondohoalawblog.com. Written by David Muller

Condos, HOAs, and Written Inquiries

Many times I see situations where an owner sends a community a certified letter seeking the answer to questions about various issues.  The nature and manner of the responses is dictated by the type of community. The Florida Condominium Act states that when a unit owner of a residential condominium files a written inquiry by certified mail with the board of administration, the board from the condominium association shall respond in writing to the unit owner within 30 days after receipt of the inquiry. The condominium association board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the condominium association board requests advice from the division, the board shall, within ten days after its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the condominium association board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. There are penalties if these deadlines are not adhered to. It should also be noted that the condominium association may, through its board of administration, adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries.

In contrast, the Florida Homeowners’ Association Act contains no such similar provision.  As such, the HOA is not required under the statutes to respond to the certified inquiry. That being said, the HOA’s governing documents still need to be checked to confirm there is no requirement therein to respond to an owner’s certified inquiry. Even if not legally required, the HOA board should consider whether it is advisable to respond to the owner’s complaints in some manner as a proactive step to possibly help resolve a dispute rather than letting it escalate further.  This decision should come after seeking advice from the association’s counsel.

Originally posted on floridacondohoalawblog.com and written by David G Muller

10 Fun Ways to Engage Your Residents

Building great relationships with your residents will lead to lease renewals, positive online reviews, referrals, and less angry phone calls. There are plenty of fun, cost-effective ways you can show your residents you care about them and their experience at your property. Here are our top 10 ideas to boost resident engagement without breaking the bank.

1. Complimentary Gift Wrapping Station

Have an unused corner of your lobby area? Create a handy little gift wrapping station that your residents will swoon over! It is a great opportunity to check in and connect with your residents while they are wrapping gifts. Also, because you’ll need to stock it with different wrapping paper and ribbons depending on the time of year, it will nicely complement your holiday lobby decor. This unique and thoughtful, low-cost amenity will set your property apart from the rest! The Home Depot has a helpful blog with tips and suggestions for creating your own gift wrapping station.

2. Community Garden

Community gardens tend to attract higher-income residents, Baby Boomers, and Traditionalists, so depending on the demographics of your community, a garden may be the perfect addition to your property. First, consult a professional landscaper to develop an accessible layout. Also, consider adding a compost bin to offset waste and enrich the soil naturally. Once your garden is up and running, host a “green thumb” contest, and post a picture of the winning plant, fruit, or vegetable on the community bulletin board, newsletter, and facebook page. Read this awesome MultifamilyBiz article for more info on starting your own community garden.

3. Trivia Night

Trivia nights are becoming increasingly popular at bars, restaurants, and now, multifamily communities! Find a location on your property that will fit a few tables and chairs (maybe your lobby, or lawn area) and grab some beers, sodas, pretzels, M&Ms, notepads, and pencils. Enlist your wittiest staff member as the emcee for the night and find your trivia questions online, from a board game, or a book. Here are a few sites with a bunch of fun questions you can use:

Free trivia questions and answers.

More free trivia questions and answers.

Trivia questions you can buy.

Don’t forget to announce your Trivia Night on your community board, newsletter, social media, and email blasts. Your residents will love testing their knowledge, getting to know their neighbors, and most importantly YOU for organizing a thoughtful and enjoyable event.

4. Ice Cream Social

This idea is so sweet and simple, but there are certainly ways to spice it up! Everyone loves ice cream, but you can kick it up a notch by bringing in a local gelato cart vendor, or setting up a banana split bar. Maybe consider moving away from the idea of ice cream completely, and host a build-your-own s’mores bar (especially if your property has a fire pit) with unique ingredients to add like Nutella, peanut butter, oreos, or chocolate chip cookies (to use instead of graham crackers). As with any event you organize, don’t forget to announce it on every community platform available so you get the most bang for your buck. Sweet treats are the best opportunity to connect with your residents, and show them some love.

5. Interior Design Consultations

Not everyone is Martha Stewart, some residents may need a little help in the creativity department. Encourage them to make their space feel like home by offering interior design consultations. Decorist is a popular startup that offers custom designs for $299 per room with no hidden costs. Laurel & Wolf and Havenly are similar platforms that offer room design services starting as low as $79 per space. Hiring an interior design service would be a great draw for new residents, or a sweet way to reward loyal ones who sign longer lease agreements.

6. Scavenger Hunt

There’s no better way to bring out your residents’ “inner-child” than a good old fashioned scavenger hunt. You can purchase a bunch of ping pong balls or plastic rings, or rubber duckies like Camden Living did and hide them all over your property. When your residents find them, they can turn them into the office to claim a prize. This gives you the chance to chat with them, and maybe hand out some branded gear. Some argue the best scavenger hunts involve riddles! If you go this route, each riddle they find leads them to another riddle until they finally reach a prize (hidden mimosa bar maybe?). Feel free to use the following riddles, and/or come up with your own!

 

Your managers work to get lots of things done

Applications and leases and all kinds of fun

They sometimes will sit at their desk in their chair

Low and behold, your next clue is there

Treasure hunt clue answer: Under your office chair

 

I’m stuck with articles, ads, and info

Lots of things that people want you to know

Papers and invites just hanging around

Somewhere up there the next clue can be found

Treasure hunt clue answer: Notice board

 

Fire me up and I’ll get nice and hot

During fun summer nights I’m a coveted spot

Wipe me down when you’re done and don’t be a slob

But enjoy your burgers and corn on the cob

Treasure hunt clue answer: BBQ

 

7. Doggie/Kitty Photo Contest

If your property is pet friendly, let your residents show off their fur babies and compete for a prize. You can create categories like, funniest pet photo, sleepiest pet photo, happiest pet photo, etc. Just have your residents post their entries on social media using your hashtag, and then re-post the winning photos on your social platforms. People are bound to connect with like-minded pet parents in your community and plan playdates. When your residents know and love their neighbors, the number of complaints will decrease and number of lease renewals will increase.

8. Hashtag Contest

If your community doesn’t allow pets, you can still run a successful UGC (user-generated content) hashtag contest. Do you have a current hashtag for your management company or property? Build brand awareness, and increase resident engagement by running a few social media contests throughout the year. Maybe during the holidays, ask your residents to post a picture of the wreath on their door using your hashtag, and the most creative wreath photo wins. Or if your property has a defining sign, gate, or water feature, encourage your residents to post fun pictures posing with that feature (and be sure to use your hashtag!). After your contest is over and prizes have been distributed to all of your winners, don’t forget to share and re-post. This will make your residents feel special and involved in the community; it also gives you great content for your social platforms.

9. Car Wash Service

Hire a local or mobile car wash company like Spiffy to come to your property and get your residents’ cars spic and span in the parking garage or parking lot if you have one. Set up a waiting area with beer and snacks for residents to enjoy and mingle with each other while their cars are detailed.

10. Leadership Lectures

If you have solid relationships with your residents, and know what they do for a living, ask if they would be interested in sharing their expertise with the rest of the community. Host a monthly or bi-annual lecture in your rec center, or common area. Do you have a CPA at your property? Ask them to share tips and best practices during tax season. Maybe there is a nurse or doctor would be willing to answer general health questions, and share new medical practices. They may be willing to speak for free, or incentivise them with a gift card, $100 off next month’s rent, etc.

Take a look at your budget, analyze your community demographics, and conclude what the most successful resident engagement event will be for your property. What will be a hit with your residents? Please let us know if you have any other tips for resident engagement, or if you attempted any of our suggestions, we want to hear how they turned out.

 

Originally posted on www.paylease.com written by Victoria Rees

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.

Originally posted on floridacondohoalawblog.com and written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers.