As a Florida Attorney with offices near Miami, Aventura and Fort Lauderdale, I have seen many examples of Condominium and Homeowner Association Boards operating illegally. One of the most prevalent abuses is Association Boards enacting Rules outside the scope of their authority.
Many Condominium Associations and Homeowners Associations in Florida have a provision in their Governing Documents that gives the Board the right to make and amend reasonable rules and regulations respecting the property. Unfortunately, Board Members are not properly advised by the Association’s Attorneys as to what that this right really entails. Many Boards or even Board Presidents will simply change the Rules without even having a properly noticed meeting. This is a violation of Florida Statutes §718.112 (condominiums) and §720.303 (homeowners). While Board Members may vote amongst themselves to amend Rules they cannot change or amend the Declaration without putting it to a vote of the owners.
Unfortunately, many Board Presidents think they can do whatever they want and conduct much of the Association’s business behind closed doors without informing the owners. As matter of practice, whenever I send a demand letter to an Association on behalf of an owner I always send copies to the individual Board Members. This assures that the President will not act alone in the decision making process. Sometimes all it takes to get the case settled is for one level headed Board Member to read the letter and convince the rest of the Board that they should not fight for the sake of fighting and that they should settle the matter before exposing the Association to expensive legal fees and damage claims.
Many Board Members are unaware that they are not allowed to enact Rules that contradict the Association’s Declaration, which is like the Constitution for the Association. As owners you should read your Governing Documents. These usually include the Declaration, Articles of Incorporation and By-Laws. Before the Board tries to enact a Rule or cite you for violating a Rule you need to assess the situation.
When Courts are called upon to assess the validity of a Rule enacted by an Association Board, they 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. This principal is discussed in the Florida case of Beachwood Villas Condominium v. Poor, 448 So.2d 1143 (Fla 4th DCA 1984). Generally speaking, a Board cannot enact a use restriction as a Rule that restricts or contravenes the Restrictive Covenants in the Declaration. Under the Beachwood case that would be considered outside the scope of the Board’s Rule making authority.
This issue usually comes up when dealing with restrictions on leasing or renting your condominium or home and with regard to pet restrictions. In most cases, the Association already has a provision in the Declaration discussing the restrictions as to leasing or keeping pets, but chooses to circumvent the voting rights of the owners by enacting a Rule that attempts to restrict the use rights set forth in the Declaration. In Timberwoods Condominium Association, Inc., v. Parker, Case No. 93-0328, the Florida Department of Business and Professional Regulation (DBPR) Division of Florida Condominiums held that while a condo board is clearly empowered to make rules regarding the use of the condominium property, a Rule limiting pet weight to 18 pounds was invalid where it contravened the Declaration provision on pets that was silent as to pet weight making it reasonable to infer that a dog of any size is allowable as a matter of right. In the Timberwoods case the owner won because the Board improperly enacted a Pet Weight Rule that was contrary to the Restrictive Covenant in the Declaration concerning Pet Restrictions. Unfortunately there are many instances where owners are losing these battles with their Associations because they are not aware of their rights or they simply have not read their Governing Documents.
If you are faced with an Association Violation letter or 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 so we can help you weigh your options before jumping into a fight that could prove costly to both sides. 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!