Condominium associations and homeowner associations (HOA) are abundant in Florida. These types of associations are typically governed by declarations/covenants and restrictions, as well as bylaws and articles of incorporation (collectively referred to in this post as the governing documents). These associations are also governed by detailed provisions of the Florida Statutes. Chapter 718 (condominiums) and Chapter 720 (home owners associations).
Board members of these associations must be familiar with their governing documents as well as Florida law to properly govern and steward these communities. Owners in these communities should be familiar with the governing documents and Florida law to understand their rights and obligations.
Condominium and HOA Governing Documents
The association’s governing documents are usually recorded in the public records of the county where the community is located. Recording these documents puts the public on notice of what you are getting into when you purchase a home within these communities. In addition to the governing documents, there will likely be other rules and regulations governing the community that have not been recorded in the public records.
Well-drafted governing documents will contain an order of precedence that establishes what governing document controls over the others. The declaration, which serves as the association’s “constitution,” will likely address myriad issues, from architectural approval for modifications, to liens and assessments, to fines and voting. Under the declaration, the association’s board is afforded authority to enact rules for the community.
The necessity for these rules and restrictions has been explained by one Florida court as follows:
inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.
Restrictive Covenants in the Governing Documents
Association board members and owners sometimes clash as to what is and is not permitted under the governing documents and Florida law. Restrictions in the association’s governing documents are given a presumption of validity, and reasonable and unambiguous restrictions will likely be enforced by Florida courts. Shields v. Andros Isle Property Owners Ass’n, Inc., 872 So.2d 1003. However, restrictive covenants will be strictly construed in favor of free and unrestricted use of real property. Covenants should not be construed in such a manner that it would defeat the plain and obvious purpose of the restriction. McMillan v. The Oaks of Spring Hill Homeowner’s Association, Inc., 754 So.2d 160. Thus, it is important to not only know what the governing documents say about the restriction, but also understand the purpose and intent of the restriction.
Associations, through their board members, must uphold the covenants and restrictions set forth in their governing documents, or they will be faced with an argument of selective enforcement/estoppel. When selective enforcement is present, an association will be unable to apply a particular regulation. For example, in a case where an association failed to enforce a restriction regarding balcony railings for over a year, the court held that it was estopped from claiming any violation of its declaration. Plaza Del Prado Condominium Ass’n., Inc. v. Richmond, 345 So.2d 851 (1977). In that case, the court said the association “was under a duty to assert itself sooner than one year after the defendants’ alleged violation of the by-laws.” In order to avoid the ever-popular selective enforcement argument, associations must be vigilant of violations of the governing documents and take action in the event of violations.
Amending the Governing Documents
Many condominium associations and HOAs in Florida have been around for over 20 years. As such, their governing documents may not address certain items/issues that are critical with today’s associations. While amending the governing documents may require a certain percentage vote of the association members, it is prudent to periodically review the governing documents to determine if changes are needed.
Whether you are a board member or owner in a condominium or HOA, the importance of knowing, understanding and following the governing documents and Florida law is imperative. If you have questions regarding these documents and the applicable law you should consult an attorney.