Association Living 101 [Part 1: Your Governing Documents]

I have always wanted to write a book about HOAs and COAs, otherwise known as homeowner associations and condominium associations. I even considered titles like "HOAs for Dummies" or "Welcome to Flori-duh" (inspired by my friend who founded CyberCitizens for Justice). Since my busy professional life makes it unlikely I will ever finish the book, I figured a would start a series of blogs to pass on the information. Let's see how often I get to post the blogs.

Here's the first blog: Know Your Governing Documents!!!

The governing documents of any association (HOA or COA) are the Declarations (also known as Decs, CC&Rs, covenants, deed restrictions, etc.), the Bylaws, the Articles of Incorporation and any published (preferably recorded) Rules & Regulations.

Rule #1:Statutes trump Decs, Decs trump Articles, Articles trump Bylaws and Bylaws trump Rules and Regulations when there is a conflict between the laws and the documents or between the documents themselves.

Exception to the Rule: When determining if the statutes overrule the documents, you have to check the first few paragraphs of the Decs, Bylaws and Articles to see if any of them state the association was formed and organized pursuant to Florida Statute 720, 718, 617 or 607 "as amended from time to time."

This is important because your documents are a contract and disputes are resolved by the courts by applying contract theory. The Florida Constitution prohibits the application of new laws to retroactively change contracts. If the documents do not include those magic words "as amended from time to time," then you have to look to the version of the statute that existed in the year your documents were recorded. This is a rule reinforced by the Florida Supreme Court in the awe of Cohn v. The Grand Condominium, which was created by earlier condo cases.

Exception to the Exception: If a statute is enacted as a matter of public policy, or is remedial or curative, it can still overrule a contract.


Rule #2: What statutes apply? If you live in a HOA, then Fla. Stat. 720 (the HOA Act) applies as well as Fla. Stat. 617 if your HOA is a not-for-profit corporation, and Fla.Stat. 607 if it is a for-profit corporation. Most are non-profit, but not all. Also portions of Fla. Stat. 607 could apply to non-profits if Fla. Stat. 617 is silent on the issue and the specific provision does not affect non-profit status. Other statutes could apply as well, such as the prohibition to publishing "dead beat lists" in the Florida Consumer Credit Practices Act (Fla. Stat. 559).

If you live in a condo, Fla. Stat. 718 (the Condo Act) takes the place of Fla. Stat. 720.

Other statutes govern mobile home parks, co-ops and timeshares.

Townhomes are usually organized as HOAs even though the have the features of a condo.

Rule #3: in HOAs, the restrictions must be recorded in the Declarations. The Bylaws can clarify. The restrictions contained in the Decs, but they can't contain restrictions not in the Decs and cannot grant authority to the HOA not in the superior document, the Declarations. This rule was created by the case of S&T Anchorage v. Lewis. This means, as an example, if the Decs don't grant the HOA authority to impose assessments, then that right cannot be created by putting it in the Bylaws.

This rule does not apply to condo docs. The courts have held condo Bylaws can create new restrictions, like prohibiting pets. The courts only explanation for this has been to proclaim condominium associations "are creatures of statute" meaning they are created by statute. I don't get the logic here, but there are differences between the two types of associations in multiple areas while some sections of 720 and 718 are identical.

Rule #4: For a document to be enforceable against an owner, it must be recorded. This is so the document is "in the chain of title" of the association members and they have notice of the document. Decs and Bylaws are recorded in the official records of the county where the land is located and the Articles are recorded with the State of Florida Division of Corporations (www.sunbiz.org). After 1995 associations were required to record all documents in the county records, so it is not uncommon to see one recording in the county records containing all three documents.

Myth #1: Despite popular belief, the State of Florida does not approve these documents are make any determination if a HOA is mandatory or voluntary. Their job is to record your corporate filing, not rule on the content.

Myth #2: The county clerks do not check documents to see if they are legal or contain necessary provisions and clauses. Their job is to record your associations documents and collect a fee for doing so. Their job is not to give legal advice or make a determination if the language in the documents is legal or if the document has been executed properly. A search of county records in any county will reveal a lot of recorded garbage. There are a number of HOAs claiming to have supreme power over your constitutional rights when, in fact, they have no authority. Condos don't usually have this problem because their documents are not subject to termination by the Marketable Record TitleAct, Fla. Stat. 712. That's a whole other chapter.

Reading and understanding your documents and the statutes are your best defense against a dictatorship of an association. Participation in meetings is the next best defense. Don't wait for a problem to get involved or read the documents. By then it's usually too late.

Stay tuned for more blogs!

Barbara Billiot Stage, Esq.