Laws Versus Rules You Need to Know the Difference

 Differences and disputes happen. We’re only human, and that’s why laws and rules are in place. But, the federalist system of government we  use in this country is far from the most efficient system. Layers and layers of  laws, statutes, and regulations fall on associations.  

 First there’s the condominium declaration and bylaws. There are the house rules that can be  separate from the bylaws. Then there are municipal codes and ordinances that  can cover anything from how many trees need to be on the association’s property to plumbing to civil rights issues. On top of that, there are state  laws and statutes drafted and passed by the Florida legislature; and finally,  there are federal laws and regulations. Associations and their counsel need to  keep abreast of all of them, because they all trump declarations and bylaws.  What might seem fair on a federal level could be more complicated on a state  level, and if your declarations are not up to date, silly legal issues can  spiral out of control.  

 I Declare

 When it comes to association rules and declarations, most states have laws in  place that establish standards for how boards and associations should conduct  their work. But, association bylaws and declarations are still a separate  entity, and it's not always that state law simply trumps anything in the  declarations, says Ben Solomon, an attorney and senior partner at the  Association Law Group in Miami. Generally, when in conflict, “federal, state, or local laws will supersede restrictions under an association’s governing documents,” he says. “However, such association documents may be more restrictive than such laws, so  long as they are not in conflict.” Since most board members are not trained real estate attorneys, there's no way  for them to tell which law would be superseded and which wouldn't. “My advice to the client is, is to look to see how restrictive their rule is  versus what the law is. If it totally changes it and flips it over, then most  likely the law is going to trump,” says Rachel Frydman, an attorney and founding managing member at The Frydman  Law Group PLLC in Plantation. “But if the rules that they have aren’t as restrictive as the law, then most likely their rule will likely stay in  place. If you have a covenant restriction, then I go back to say ‘does this association have to follow the laws as they become amended, or are  they allowed to stay within the current statute?’ There's analysis you have to do to see what law would trump what and what  wouldn't,” she says.  

 If boards do find that their documents, whether they be bylaws or declarations,  are not syncing up with new laws, Solomon says there are a few ways to react. “Although an amendment to the document that's in conflict would be ideal to make  it comply with the current law, if the same can be achieved without overly  burdening the association, technically the association doesn't need to do  anything but comply with the new law regardless of the conflict under their own  documents. The general rule on conflicts would govern, meaning that the new law  would automatically supersede the conflict in the document,” he says.  

 Something Old, Something New...

 A lot of the discrepancies that associations find they have with new laws  usually involves technicalities. “For example they amended a document regarding fining. When they put fining in  the statutes, it said 'unless your documents say otherwise, you fine up to $100  per day,' so you have to determine whether your documents have a certain dollar  amount for a fine, or whether the statute's going to kick in,” says Frydman.  

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4 Comments

  • My condo association demands that owners send certified mail to our management company, The Florida Statues states: "there is no law or rule that owners MUST SEND CERTIFIED MAiL" (only if requesting association's official records. Does the Florida Statue supersede what the association wants of owners? Thank you for your needed response,
  • Can you please respond to my question: "Can my BOD BLOCK my emails because were not sent certified?? Thank you for your response. andreasandow@yahoo.com
  • Our Homeowner Association recently adopted "reasonable rules" for recording Board Meetings. These rules include a few questionable requirements. I don't believe a rule that requires a member to notify the association manager, in writing, at least 24 hours in advance of the meeting, of their intent to record the meeting, is warranted. This rule also is open to interpretation, however the board has indicated that one letter for the year, will not suffice. This rule does not pass the reasonableness test, as it serves no purpose other than to satisfy the curiosity of the board. (The board named the member recording the meeting, using a microphone, to all in attendance. Why? What is the purpose? ) The next rule doesn't appear to be lawful. Can an HOA take away a right of a member that is attending the meeting? If the member is allowed to attend, don't they have the same rights as all the other members in attendance?  The owner/member of the Association doing the recording must be a member in good standing with the Association. The following rule is not clear. What if the equipment (cell phone) requires no setup, may I start recording, after the start of the meeting?  Any setup and positioning must be done in advance of the start of the meeting. The next rule does not pass the "bright-line" rule. Shouldn't the rule state,"No one is allowed to cause a distraction or disruption to the meeting by moving around the room to facilitate sound or video improvement of the recording."  No one is allowed to move around the room to facilitate sound or video improvement of the recording while the meeting is going on. It is my understanding that the recordings of the meeting are the property of the parcel owner. The HOA has no say as to what the owner does with their property, is this correct? Also note the rule appears to only apply to video recordings, not all recordings, which would exclude Audio, Digital, etc. , this wouldn't pass the "bright-line" test.  Videotaped meetings cannot be posted in a public forum on any social media (NextDoor, Facebook, YouTube, Twitter, etc.) Boards should try to pass what’s called in the law as “bright line” rules, which are rules which leave little room for discretion and/or interpretation. These types of rules provide clarity for both management and the residents, and reduce the chance of misunderstandings. When developing rules that may be controversial, sending a carefully crafted questionnaire and obtaining the resident’s thoughts on the issue that the rule is being created to address, might be wise. PLEASE, I WELCOME COMMENTS
  • I live in a HOA that states you can have a bird feeder. However my neighbor has two . We are 500 feet across from each other and we are getting bird feces all over our patio. I can't even sit out there. I went to the board and they said its in the bylaws so she can have a feeder. Its so bad with bird feces that we can't even sit out there its so unhealthy. I can not even let my dog out. Its all over my furniture. How can I get help.