Can Condo and HOA Boards Change Use Restrictions Without Owners’ Vote?

Many of us in Florida  live in Condominiums and Homes governed by Associations.   These Associations are typically run by Board Members that we elect to run our development.  What happens when the Board tells us that we can’t have dogs over a certain weight, that our teenagers can’t use the common Gym unless they have a licensed and insured personal trainer or that our little ones cannot play catch on a field of grass in front of the clubhouse?

The Sun Sentinel recently reported that a Coconut Creek homeowners association was trying to ban children from playing in a field often used for impromptu soccer and football games.  (Can HOAs keep kids from play? – Sun Sentinel,    page 1 of the Money Section, 1/7/2012 ).    Daniel Vasquez reported that the Association claims that they are protecting the Community by trying to ban children from playing in a field that is adjacent to the common area pool and playground.  He also reported that the Association is temporarily backing off of  this ban until it’s February elections.  Apparently this is not an isolated occurrence.  Another Association has actually proposed a rule banning kids from playing outside unless accompanied by an adult.  In this Sun Sentinel Article   the HOA in Edgewater called Persimmon Place actually intends to impose a fine of $100 for any such violation.  In addition, they  want to ban the game of tag, skateboarding, Big Wheels, loud or obnoxious toys.    The real question, in these cases,  is whether or not these issues are a matter within the Board’s rule making authority or whether they should be voted on by the owners.

This issue was decided in Beachwood Villas Condominium v. Poor, 448 So.2d 1143 (Fla. 4th DCA 1984).  Now when a court is called upon to assess the validity of Board enacted Rules  it must first “determine whether the Board acted within its scope of  authority and second, whether the rule reflects reasoned or arbitrary and capricious decision making.”  The court went on to note that  in order to determine whether the topic of a rule is a legitimate subject for board rulemaking, it must not contravene either an express provision of the declaration or a right reasonably inferred therefrom. Although a board may propose a rule that changes or modifies the declaration the board will still need to have the owners vote to approve the change and follow the procedures for amending the declaration.  The board may not act alone in this regard.

I have seen many cases where boards have enforced rules that are outside the scope of their rule making authority.  In many instances this practice has gone on for years without any challenge from the owners.  People have been forced to get rid of pets, kids have been banned from playing and these Associations have been allowed to be run like  dictatorships.  All too often we are told of various Rules that we must comply with at our Florida Community Associations.    Just because our Board Members voted and enacted these Rules does not mean that we should blindly follow them?    Part of the problem is that many Board Members serving Condo Associations and Homeowner Associations are unaware of what proposals need to be voted on by the Owners and what matters the Board can enact on it’s own.  The first place to look is the Association’s Governing Documents.  These typically include the Declaration, By-Laws, Articles of Incorporation and Rules and Regulations.  The Declaration of the Association is like the Constitution for that particular development and takes precedence over the By-Laws, Articles of Incorporation and Rules and Regulations.

In Florida, the law is clear that Rules (made by the Board) cannot contradict the Association’s Declaration or a right reasonably inferred therefrom.  While the Declaration is typically drafted by the representatives for the Developer, Florida Law does allow it to be changed or amended from time to time.   Section 718.110 of the Florida Statutes (720.306 for Homeowners Associations) states that the Declaration may typically be amended if it is approved by a two thirds vote of the owners.  Moreover,  for it to be effective it must be recorded in the public records of the county where the declaration is recorded.  While Associations are free to amend the percentage voting requirements, this does not change the basic principal that the owners must vote to approve or reject an amendment to the Declaration.

If your Association has sent you a Violation letter,  or you are looking to rent or buy in a Florida Condominium Association or Homeowner Association you should know what the Use Restrictions are and whether or not they are valid.  As a Florida Law Firm with over 20 years of Trial experience we can help you fight your Association or simply review and analyze the Association’s Governing Documents for you before you move in to see if it is a place you really want to live in.

The Law Offices of Herb M. Milgrim, P.A. is a Florida Law Firm that represents Condo Owners, Homeowners and Cooperative Owners that have disputes or are contemplating Litigation or a Lawsuit against their Association.   We provide prospective clients with a *Free Case Evaluation.  You can call us and tell us about your case to see if we can help you.  Once we have been retained we review all of the relevant documents and governing Florida Laws and advise our clients on the best course of action. Call us now (954) 966-3909!

 

* Free Case Evaluation is by telephone and does not include legal advice.  Office consults with legal advice are available on a flat fee basis.

 

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