EXPERT

As an experienced and specialized attorney having worked with hundreds of condominium and homeowners associations, and as a dedicated advisor to business executives for decades, my goal is to provide you with exceptional, personalized service and to guide you through the best legal and practical solutions for your legal situation.  

Often, disputes can be resolved through direct negotiation, mediation, or arbitration rather than costly, protracted litigation. Not every dispute requires litigation. 

Moreover, disputes can often be avoided altogether or you can be in a much more favorable legal position should litigation become necessary through careful planning and contract drafting before a dispute ever arises. That's where my experience comes in.

Should a dispute arise, however, and you are considering litigation or are find yourself as a defendant to litigation, I can help.

Call me for a no-cost consultation.

Associations in Florida are governed by Florida Statutes as well as various legal documents that together comprise their governing documents. When provisions within the various documents or with Florida Statutes are in conflict, questions arise as to which document takes precedence. 

The Governing Documents in General

In Florida, condominium and homeowners associations are governed by Florida Statutes as well as the association's declaration of condominium (or declaration of covenants and restrictions, in the case of a homeowners association), as well as the association's articles of incorporation, bylaws, and rules and regulations. Typically, these documents are carefully drafted so as to compliment each other without any conflicting provisions. Occasionally, however, an apparently ambiguous or even express provision in one document seems to conflict with a similar provision in another document and thus the conflict must be resolved by giving its respective document the weight and authority it carries in the hierarchy established by law.

The Declaration of Condominium or Covenants and Restrictions

The declaration is the most comprehensive of the documents that comprise the governing documents. The declaration, for example, describes the property; identifies easements; identifies what constitutes an owner's property and what property belongs to the association itself; establishes responsibility for the maintenance and repairs of the various kinds of property; provides for architectural control restrictions; provides for the levying of assessments; and authorizes legal remedies for the enforcement of the association's covenants, restrictions, and rules and regulations. 

The Florida Supreme Court has determined that an association's declaration of condominium is its constitution. See Woodside Village Condominium Association, Inc. v. Jahren, 806 So. 2d 452 (Fla., 2002), citing Pepe v. Whispering Sands Condominium Ass'n, Inc., 351 So. 2d 755 (Fla. 2d DCA 1977). In Pepe v. Whispering Sands, the court stated: "A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto-it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property. Stated otherwise, it spells out the true extent of the purchased, and thus granted, use interest therein....Hence, because condominiums are a creature of statute courts must look to the statutory scheme as well as the condominium declaration and other documents to determine the legal rights of owners and the association." 

As the condominium association's constitution, then, the declaration of condominium (and analogously, a homeowners association's covenants and restrictions), stands at the top of the hierarchy insofar as the other association documents, and in the event of a conflict it is the declaration that prevails. In the event of a conflict between Florida Statutes and the declaration, however, or between Florida Statutes and any of the other governing documents for that matter, Florida Statutes prevail. 

Articles of Incorporation, Bylaws, and Rules and Regulations

Next in the hierarchy is the association's articles of incorporation. The articles of incorporation outline the legal name and principal address of the association, the number of directors, and the purpose of its existence, for example. The association's bylaws are next in line and provide the basic framework for the management and governance of the association. It is here where procedures may typically be found regarding, for example, elections, the type of meetings that may be held, criteria for eligibility of directors, voting rights and quorum requirements, and duties of officers. 

Rules and regulations are lowest in the hierarchy, and must stem from some underlying authority in the association's governing documents, typically its declaration or its bylaws. That is, an association's declaration or bylaws typically grant an association's board of directors the authority to adopt rules and regulations to administer and enforce its covenants and restrictions. If, for example, a declaration provides that residents must refrain from excessive noise that would be a nuisance to others, the association may wish to adopt reasonable rules regarding pool hours that do not extend into the late evening or midnight hours. Because rules and regulations are based on some underlying authority in the declaration or bylaws, and typically address more routine operational matters (such as pool hours in the above example), they are adopted and modified by the association's board of directors rather than by a vote of the owners. Still, the rules and regulations must be reasonable, and must be uniformly applied.

Conclusion

Board members and others responsible for the governance and operation of a condominium or homeowners association should understand the priority given to each of its documents, all of which are subordinate to Florida Statutes, when there is an apparent conflict in a given provision. However, this understanding should serve only as a foundation for a common understanding and discussion of the particular facts and issues with the association's legal counsel rather than for embarking on a course of action without competent legal advice. Governing documents are typically quite extensive, and what appears to be a direct conflict in one section may be fully reconciled by a provision in another section.  

_______________________________________________________________________________________________________________________________________

Condominium and homeowners associations typically understand the importance of uniformly enforcing their covenants, restrictions, and rules and regulations, as set forth in their governing documents. Nonetheless, an association may on occasion find itself in a situation where (for whatever reason) a particular provision in its governing documents has not been enforced uniformly (or perhaps not at all) for some time. For example, an association may have been overlooking a pet restriction in its declaration of condominium or declaration of covenants and restrictions, such as a restriction prohibiting dogs, limiting the number of dogs, or perhaps imposing a weight limitation. Other common examples include commercial vehicle restrictions, a prohibition on tool sheds, or a requirement to obtain association approval before leasing a unit or home.

At some point, possibly because the lack of enforcement gave rise to undesirable conditions in the building or community, or for other considerations, members of the association (which for our purposes here we’ll simply refer to as owners) demand that the association address the problem. In response, the board of directors determines it is necessary or prudent to again begin enforcement of a restriction that has not been enforced for some time, maybe even years. In fact, the board of directors may be considering taking legal action against anyone who fails to comply.

However, if the association were to simply begin enforcing a previously unenforced restriction without first satisfying the requisite procedural and notice requirements, its actions could be challenged on the basis of waiver (albeit subject to non-waiver provisions in many association governing documents) and selective enforcement, both of which are recognized defenses in circumstances such as these. An association is said to be “estopped” or precluded from enforcing a given provision in its governing documents when there has been selective enforcement. In other words, an owner may have a very viable defense to enforcement action if other owners have been in violation of the same restriction for years and the association has not taken enforcement action against those other owners. Thus, an association could in these circumstances find itself on the losing end of an expensive arbitration or civil court case (or both).

The Supreme Court of Florida ruled on this very issue in the case of Chattel Shipping and Inv., Inc. v. Brickell Place Condominium Ass'n, Inc., 481 So.2d 29, 10 Fla. L. Weekly 2719 (Fla. App., 1985). In Chattel Shipping, the association’s governing documents prohibited enclosing balconies, yet over time, some forty-five owners had done so. Subsequently, a City of Miami official informed the association that zoning ordinances prohibited the enclosing of balconies. The association then informed all owners that although the association would not take action against owners who had already enclosed their balconies, the practice was expressly prohibited by the governing documents and this prohibition would be enforced going forward, meaning no other owners would be allowed to enclose their balconies. Two years later, an owner did precisely this, enclosing his balcony. After the association’s demands that the owner come into compliance were ignored, the association filed suit seeking an injunction to have the enclosure removed. The owner defended the action on the basis of selective enforcement, arguing that unless all owners were required to remove their balcony enclosures, the association was powerless to require that only he do so. After all, the prohibition had been in the governing documents all along, thus from the owner’s perspective, it should apply to everyone or to no one at all. The court disagreed and held in the association’s favor.

The court determined that (notwithstanding the line of cases that establish that an unequal and arbitrary enforcement of a restriction cannot be supported), when an association adopts and implements a uniform policy that as a practical matter as well as economic reasons will be enforced only prospectively, the policy will not be deemed arbitrary and selective. Consider the practical and economic burden upon the association if it were required to file suit against forty-five owners as a prerequisite to enforcing the prohibition in question. Moreover, as the court stated in Chattel Shipping, the association may be legally estopped from forcing compliance from those particular owners who may have relied on the association’s non-enforcement of the balcony restriction (or perhaps even tacit approval) before undergoing the expense. 

The takeaways here are that a new or changed rule or restriction, or policy interpreting or affecting the rule or restriction, must be properly adopted and implemented as a prerequisite to enforcement action. Moreover, depending on the circumstances, the new or changed rule or restriction could potentially be applied only prospectively and yet not be deemed to be arbitrary and selective. Notably, however, in adopting and implementing the rule or restriction, an association would in most circumstances be well-advised to follow the formalities set forth in Florida Statutes with respect to adopting an amendment to the association’s rules and regulations concerning the “use” of a unit or parcel, as further discussed below.  

Those formalities regarding rules concerning “unit use” (which is a rather broad and encompassing term) are set forth in Section 718.112(c), Florida Statutes. It requires a notice to unit owners with at least 14 days’ notice (specifically identifying the agenda items), mailed, delivered or electronically transmitted, as well as posting conspicuously on the condominium property for the same period of time. Florida Statutes Chapter 720 contains almost identical language with respect to “parcel use”, setting forth these same formalities. Moreover, recent changes to Florida Statutes Chapter 720, which now includes rules and regulations within the definition of “governing documents”, arguably requires the recording of any new or amendments to the rules and regulations before they are deemed effective, and sets forth the specific manner in which amendments to the governing documents must be proposed. Additionally, an association’s governing documents may set forth additional procedural requirements beyond those set forth in Florida Statutes. 

Given the legal implications involved in the adoption and implementation of amendments to the governing documents, including rules and regulations, and their subsequent enforcement, associations should consult with their legal counsel on these matters (just as they prudently would do on any other legal matter) early in the process. This would allow the association’s legal counsel an opportunity to better identify the association’s goals, develop the appropriate language to be proposed for adoption, and then properly adopt and implement the policy. 

The association’s legal counsel will also be in the best position to advise the association whether enforcement may be legally supportable against owners who violated the prohibition in question during the period that it was not being enforced, or whether enforcement should be only prospective in nature. In short, although associations should ensure that their covenants, restrictions, and rules and regulations are enforced consistently and uniformly, through close consultation with legal counsel the association will be in the best position to remedy the situation.