New Owners Beware of Contradicting Rules in Your Condo Declaration

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If you are in the process of buying a condominium or are a new owner, it is important to familiarize yourself with the governing documents for your Association. One of the key documents is the declaration, which sets forth your obligations, including payment of dues and assessments, as well as the Association’s covenant restrictions and requirements. Many Associations have additional written rules and policies that are separate from the declaration. The declaration and other governing documents (bylaws, articles of incorporation) give the condo board the authority to promulgate or amend such rules and regulations.

Understanding the difference between the condo declaration and the condo rules and regulations is important for new owners, especially in the event of a contradiction between the declaration and the rules. Which document controls? Read on to learn more.

Condo Declaration

Also known as the master deed or CC&Rs (covenants, conditions, and restrictions), the declaration is regulated by the Condominium Act and will be recorded in the public records of the county where the property is located. It is often viewed as somewhat of a constitution for the Association and is legally required to include, among other things:

  • Survey of the land
  • Undivided share of ownership of the common elements and the common surplus
  • Percentage of fractional shares of liability for common expenses
  • Unit owners’ membership and voting rights
  • Creation of a nonexclusive easement for ingress and egress over streets, walks, etc.

In addition to these items, declarations often contain the majority of “dos and dont’s” for the community.

Condo Rules and Regulations

Your condo Association will likely also have rules and regulations, which are enacted by the condo board and are designed to interpret, clarify, and assist in the administration of the declaration. Typically, they contain things like limitations on the use of common areas, as well as architectural guidelines. Importantly, rules and regulations cannot be more restrictive than the Declaration. For example, if a declaration states that dogs are allowed, a rule that only dogs under 50 pounds will likely be unenforceable. However, if there have been documented incidents of a certain type of dog attacking residents, a rule requiring that such dogs be leashed and muzzled when in common areas may be enforceable.

Can an Association Unilaterally Change a Rule or Restriction?

Some Florida Associations assume that they can change rules without input from the owners. This is not the case. Condo board members cannot change or amend the declaration without putting it to a vote of the owners. Nor can they enforce a rule that is contradicted by its declaration.

When called on to decide the validity of a rule enacted by the condo board, courts will first determine whether the Board “acted within its scope of authority” and second, whether the rule is “arbitrary and capricious.” The burden is on the Association to show that the rule is reasonable. One Florida court stated that a rule must not contravene either an express provision of the declaration or a right reasonably inferred therefrom.

Associations try to get around the law by arguing that they are simply clarifying a restriction set forth in the declaration. Additionally, as in the example of pet restrictions, board members often get away with enacting further restrictions (such as a weight limit) because condo owners either are unaware of their rights or simply have not read the declaration.

Bottom line – your Association should not be able to enforce a rule that is contradicted by its declaration. The declaration controls. 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.

How a Florida Condo Attorney Can Help

If you believe your Condo Association is improperly enforcing a rule or regulation against you, we welcome you to contact us at (954) 966-3909. We serve the legal needs of individual condominium owners, home owners and cooperative owners in resolving disputes with their associations throughout Florida, including Broward, Dade and Palm Beach Counties, as well as Hollywood, Davie, Pembroke Pines, Hallandale, Sunny Isles, Aventura, Miami, North Miami, Brickell, Boca Raton, West Palm Beach, and Naples.  We NEVER represent associations.

Please note that 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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