When Your Governing Documents Clash with State Laws

Here in Florida, we're no strangers to HOA or condo legislation.

Florida has more community associations than nearly all other states combined if you don't count California, and that means that The Man has made more than a few rules about how to run them (for better or for worse). And while there are currently no federal laws governing HOA or Condo associations, there are other states that have started to follow Florida's lead (a sentence I never thought I would write given our national reputation of generally being bananas) and implement state legislation of their own.

On top of state laws, there are also rules dictated by community association's governing documents. Governing documents generally start with a boilerplate template, and then get modified by the developer as to the specifics of the association. Once the Condo Association has been formed, and then turned over from developer control to board control, the board has the power to write new policies, add amendments and generally make changes that are in the best interest of the association.

So what happens when your documents say one thing, and the law says another? When you have to serve two masters, how do you do so without hurting your reputation or your bottom line?

Start with the Legal Bodies

With so many different governing documents, plus the additions and amendments that are made by various boards over the years of the condo association’s life, it’s easy for conflicting rules to be introduced. When this happens, there is an legal order of operation that boards can use to determine which ruling is right:

1.  The Law: Federal, State and County Laws always take precedence.

2.  Recorded Maps: The Plat Map or Condo Map Plans recorded with the county comes next.

3a.  For HOAs: Covenants, Conditions and Restrictions (CC&Rs)

3b.  For Condos: Declaration of Condo (and CC&Rs)

4.  Any supplementary declarations added by the board

5.  Articles of Incorporation

6.  Bylaws

7.  Board Resolutions


Highest Severity Takes the Cake

There will be some (many) cases in which the law and your governing documents cover the same requirement, but have different expectations. For example, Florida law says that Meeting notices must be publicly posted no less than 14 days prior to the Meeting. But your documents dictate that Meeting notices must be publicly posted no less than 30 days prior to the meeting. 

When this happens, your best bet is always to follow the most stringent requirement to ensure that you meet the expectations of both establishments.

Always Talk to Your Lawyer

Like any legal conflict, there are shades of gray that take effect. For example, if the state law was only recently passed, but it blatantly conflicts with the governing documents that have been in place for 30 years, there may be some legal ability to extend the period before the law takes effect, or even argue to keep the policy in court. If you experience a conflict of this nature, we recommend you consult an attorney that specializes in community association law.

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