Foundational Documents for Co-ops, Condos and HOAs Avoiding Document Disasters

The building blocks of all homeowner’s associations are the community's respective bylaws, administrative documents and house rules. Equally important are legal documents that define critical information and other action items, such as terms of occupancy and procedures for the purchase and sale of units. If these legal documents are not expertly handled, or are outdated and vague, big problems can ensue.

“The most fundamental documents are the declaration of condominium—which, in the case of a homeowners association, includes the articles of incorporation, bylaws and rules and regulations for the association,” says Attorney Robert M. Kesten, of counsel, at the law firm of Leslie Robert Evans & Associates, P.A. in Palm Beach. “The bylaws, rules and regulations and articles of incorporation are normally filed with the Department of Business & Professional Regulation (DBPR) for approval and once approved they are filed with the county clerk of the county the building project is located.”

Attorney Jed L. Frankel, a shareholder attorney in the law firm of Eisinger, Brown, Lewis, Frankel & Chaiet, P.A. in Hollywood, likens the condominium association’s declaration to the U.S. Constitution. “It sets up the framework for the association and cannot be changed by a rule passed by the board; that can only be done through an amendment passed by a super-majority vote.”

Frankel explains that the corporate paperwork—the articles of incorporation and bylaws—generally establishes the powers and duties of the condominium association, and must be consistent with the declaration.

“The rules and regulations typically establish guidelines for day-to-day activities,” he says. “This would include such things as requiring certain dress in lobby areas and establishing the hours that pools and other recreational facilities are open. Rules that are contrary to the declaration are void and unenforceable. For example, if a declaration specifically allows pets, a rule that attempted to prohibit pets would be invalid.”


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