Which Governing Documents Should Be Reviewed And Amended In An Association?
There is a hierarchy to the governing documents. In a condominium association, the most important governing document is typically called the declaration of condominiums. In a homeowner association, there are a variety of names for this document, including the declaration of restrictions, easement, and covenant. These documents establish the associations, assessments, certain use rights, easements, and voting rights of the members. In order to amend this, owner approval will likely be necessary, but it will depend on the type of issue at hand and whether or not it is a material alteration. It will also depend on the governing documents or the particular declaration being reviewed in a particular instance.
After the declaration come the articles of incorporation, which are filed with the state of Florida when the association first becomes an actual corporation. These documents serve as the backbone of any corporation. With associations, there are some things that one might expect to be in the bylaws but that are actually in the articles of incorporation. Third in the hierarchy are the bylaws, which are the day-to-day operations of the association in regard to notices for member meetings, board meetings, the election of directors, and the election or appointment of officers and directors. Typically, the bylaws are recorded with the declaration in the public records. Last but not least are the rules and regulations, which are not required but most associations do have them. Rules and regulations cover restrictions related to parking and the type of vehicles allowed, pet issues, and use rights. These matters may be amended fairly frequently by the board members. To summarize, the governing documents include the declaration of covenants or the declaration of condominium, the articles of incorporation, the bylaws, and the rules and regulations.
Should Our Association Have Legal Counsel On Retainer At All Times?
It’s almost always a good idea for an association to have legal counsel on retainer at all times. There are small associations that don’t charge a lot of money and so their budget is small. With those associations, I am very careful with the amounts of monies that are spent, and unless it’s absolutely necessary, they may not have the funds to use legal counsel. However, it would be bad practice to forgo legal counsel entirely. If a lawsuit becomes necessary at any point, the association would need to hire an attorney to represent them.
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