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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 Since most board members are not trained real estate attorneys, there's no way  for them to tell which law would be superseded and which wouldn't. “My advice to the client is, is to look to see how restrictive their rule is  versus what the law is.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.  

 But other changes are much more sweeping and may even have heavy consequences.  The most recent example is the Aventura Management v. the Spiaggia Ocean Condominium Association. “This case affected all association-owned condominium units, in that technically  the association would not be entitled to recover the ‘safe harbor’ after the bank completes its foreclosure,” says Russell Robbins, a managing partner with the law firm of Mirza Basulto & Robbins LLP in Coral Springs. “The court determined that the association, in acquiring title to the unit at the  association’s lien foreclosure sale became an ‘owner’ as defined in Florida statutes, and subjected to joint and several liability  for the debt,” he says.  

 To cut through the legalese, Frydman explains that, “Associations are losing tens of thousands of dollars that they used to collect  by third parties at foreclosure sales by banks. Now if the association has  title for a certain period of time, even if it's one month, they can lose ten,  twenty, thirty thousand dollars that the prior owner owed, but the association  took title to and lost at the bank sale.”  

 The case is not just unpopular with condo owners, it's unpopular with attorneys  who are forced to get creative in order to keep associations from getting too  far into the red. “It's hoped that the legislature will see this gaping hole in the law that  affects every condominium association in Florida and correct the statute to  clarify that the association is not a ‘unit owner’ when acquiring title to a unit at its foreclosure sale,” says Robbins.  

 But financial issues aren't the only subjects of controversy. The United States  is constantly in a state of social change, and when legislatures and courts  respond, condo declarations can be part of it.  

 Fair housing policies, discrimination laws are the kinds of federal statutes  that can powerfully affect how associations do business. Those federal laws and  regulations usually say they can be superseded only if a local entity has a  more strict law concerning the issue at hand. One of the more recent examples  of federal policy affecting condos is senior communities.  

 Age-Restricted Communities

 “When they had the no children rule, there was a change, I think in 1992, that  said 'if you're going to restrict kids you have to have certain language and it  has to measure the fair housing restriction with the 80 percent beginning 55  and older,' so there was certain language that had to be adopted in order for  associations to restrict children from living there,” says Frydman. “There are times where the legislators will put something into effect and it is  going to change your documents, but you have to go with the times and change  your documents in order to meet what the law's going to require.”  

 Another hot button topic involves pets. “Some HOA documents prohibit having pets for example,” says Solomon. “However, there are legal exceptions under federal law for seeing eye dogs and  other medically-necessary pets, which laws would supersede the pet restriction  under the documents. Again, only if medically necessary though.”  

 Freedom of Speech

 First amendment rights can also engender conflicts in associations. Free speech  is a very coveted American democratic tradition, and it's not surprising that  it can cause problems when unit owners are trying to maintain a uniform and  well-maintained community. “I did have an association a few years ago with someone who put up some sort of  flag he painted on his garage door,” says Frydman. “You're supposed to be allowed to display the flag, but it became above and  beyond that time that it was causing an issue. I don't even think it was the  American flag, it was the Confederate flag or something. We were trying to  determine how far we were going to push his rights versus our rights, and  eventually we settled it. But there are things that are going to conflict, and  boards need to make a business decision about whether they want to become part  of the news or do they want to try to work it out internally,” says Frydman.  

 Working things out among neighbors almost always makes for the most responsible  and least painful way to resolve a dispute. “I recommend internal mediation, some sort of informal sit-down with the parties  to hammer out what their issues are and what our issues are, so we can kind of  work it out in the middle,” says Frydman. “With a formal mediation you have to pay somebody a lot of money, and they don't  always help you. They just kind of facilitate the conversation, and if you're  willing to have the conversation on your own, you don't really need it.”  

 Think Before Litigating

 Unfortunately, the other option is litigation. The clients have to be willing to  spend the money which they may not recover. Hopefully it gives them the outcome  they're looking for, but I don't think that's a good way to spend association  money,” she says.  

 That's why associations should maintain a healthy dose of empathy along with  everything else. How statutes, regulations, ordinances and the like shake out  can be messy, and sometimes just not make common sense. The best defense is to  stay up to speed as much as possible, and have a great line of communication  with your attorney.   

 Tom Lisi is an editorial assistant at The South Florida Cooperator and other  publications.

 

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8 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.
  • I am in a HOA non gated community. According to the association I Can't have a boat and it's trailer on my property. The Pasco County building ordnance & Code enforcement unit came by and left me a official document stating that as long as the boat and trailer is behind the front lines of the house as seen from the street is fine by the code enforcement of Pasco County were I am located. Yet the HOA said the Pasco County ordnance DOESN'T APPLY TO THEM, the HOA??? I just will like to have this clarified. Does the Pasco County ordnance trumps the HOA no boat or trailer ordinance??
  • i live in a condo, i rent. yet the condo assoc had a complaint about me because my neighbors are nosey and gossip. i asked to attend the condo assoc meeting, since the complaint was against me in the first place, and was told no because i'm not a homeowner. it is unfair if living in a condo, someone can't attend a meeting to be present about a gripe in the 1st place. is this right or do i have grounds to counteract this ? this has cost so much peace and quiet enjoyment for myself and my son . it seems the rules only apply to people who rent not own a condo unit, and the tenant can be forced out or made homeless
  • I have a buyer for my home in a broward county florida HOA community. They were originally denied because one co-applicant did not meet the credit criteria stated in our CC&R. Now, the co- applicant does meet the credit criteria with all credit agencies except Equifax. Since Equifax is the reporting agency, that the investigative company that our property management uses at the direction of the HOA, they will not approve my buyers. The HOA will not accept the updated score from any other other agencies. What recourse do we have. My buyers are living in a hotel, as they sold their town house in hopes of increasing their score.
  • My condo association directs that unit owners must pay the expense for sewer stack vent pipes repairs that are inside the condo wall of their own unit. Was there ever any Florida State Laws or other that clarified and put this expense on the Association vs the individual owners? thanks