Friday, December 28, 2012

Does State Law Prevail Over Declarations? - It Depends

The typical answer to any legal question is "it depends." There are no simple answers. Ever.

When dealing with a community association (HOA or condo) and there is a conflict in state law and the governing documents (Declarations, Bylaws, Articles of Incorporation and Rules and Regulations) state law prevails, unless the documents were recorded before the law, but not if the law is remedial, curative or enacted as public policy. There are several cases dealing with this which have established case law or judge-made law, the most recent being Cohn v. The Grand Condominium, but the rule is based on the Florida Constitution, which provides no new law may be applied retroactively to change a contract. The governing documents are contracts between the association and the members.Thus, it depends.

When the documents conflict with each other, Declarations prevail over Articles, Articles prevail over Bylaws And Bylaws prevail over Rules and Regulations.

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