Albert Moore, Attorney at Law

Can A HOA Or Condo Board Legally Keep Adding More Rules?

It depends. The hierarchy of authority that governs associations is you have the Florida statutes, then you have the declaration of condominium or covenants, then you have the articles of incorporation, then you have the bylaws, and last but not least, you have the rules and regulations. Now, on the rules and regulations, those are issues that are to be voted on by a majority of the board members and not by the unit owners. A question sometimes becomes is that issue properly supposed to be disposed of and the rules and regulations or is it something that needs to be put in the declaration, which would require an amendment, which would require member votes as opposed to board of director votes. Now, if it’s something that is appropriate to be put in the rules and regulations and the directors add those to the rules and regulations, those are enforceable regardless of whether or not the majority of the home owners are in favor of those rules or not.

If it’s an appropriate restriction to be placed in the rules as opposed to declaration or in the by-laws, which should be a little rarer but could happen, if they are placed in the wrong place, then certainly those rules that would be put in could be successfully challenged. But if they are put appropriately in the rules and the regulations and the meeting is properly noticed and they follow the rules in regards to the notice of the meetings, and they have a proper meeting and a proper motion and a proper second and majority of the board votes on it, then they can keep adding rules and restrictions as long as those are supposed to be placed in that particular governing document.

Can The Owners Ever Override A Decision Made By The Board Or HOA?

If the matter that’s at issue is a matter that is appropriate for a board of directors to vote upon and the meeting was noticed correctly, the meeting was held correctly, the vote was taken correctly and the majority of the board owners voted in that particular capacity and as a majority decided to adopt a rule, then the owners cannot override that decision. The way that an owner can attack a certain rule that has been instituted by the board of directors is to, a) say it’s something that wasn’t appropriate for the board of directors to vote upon and it was something that the unit owners or the home owners should have voted on because that was something that needed an amendment and the declaration, or in the bylaws, not simply just a rule and regulation vote, so that’s one way to successfully attack it.

The other is that if the board of directors are making rules and regulations that the majority of home owners are against, then they can certainly vote in new directors when the time comes for an election. There’s also part of the Florida statutes both under home owner’s association and the condo association law for removal of directors and there is a procedure that has to be followed and it’s quite difficult to do but it’s not impossible. I’ve been involved on both sides of those in regards to representing groups of unit owners that want to recall the director and I’ve also represented associations when a group of unit owners has tried to remove a director. You can vote new directors in and it’s technically possible; practically, it’s difficult but doable. You can recall a director.

You can also attack it if it wasn’t supposed to be a matter that would be taken up by a board something that is typically not in the rules and regulations and you would look under the declaration and say, “See, here is the section that governs this and when the board took the vote, it would have to amend the declaration”, and most declarations have to be amended by member votes especially ones that have been turned over from developer control. So, if it’s in the wrong place, the unit owner would have some relief. If the owners gathered together and want to attempt to recall the director or directors or vote new directors in, those are really their options for relief.

But if it’s in the right place and you have the current board in place and that’s been voted on by the board correctly, then the owners can’t just gather together and say, “Well, we’re a majority and we don’t like that rule, so we’re going to override it”. It doesn’t work that way.

For more information on HOA & Condo Boards Making New Rules, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (772) 242-3600 today.

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