Rule Enforcement Authority of Rules and Regulations made by a Community Association Board
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The Florida Homeowners’ Association Act and the Florida Condominium Act provide a community association’s board of directors with authority to promulgate rules and regulations concerning the association property and its members. The creation and enforcement of an association’s rules and regulations are often areas of uncertainty and doubt for community association board members. Because rule enforcement is a leading cause of disputes and litigation between an association and its residents, it is imperative that board members and managers have a good understanding of this subject. This blog post will provide a synopsis of Florida law on the rule making authority of a condominium association board, homeowners association board, or community association’s board of directors.
Similarities Between A Homeowners Association Board And Condominium Association Board
One unifying characteristic of Florida community associations is that they all must have a set of recorded governing documents, which often consists of the declaration of covenants, bylaws and articles of incorporation. These documents contain the covenants, bylaws and restrictions that govern the properties and members within the association. It is a community association’s board of directors that is delegated the power and authority to enforce the governing documents for each respective association. The board of directors will oftentimes hire a licensed community association manager as an agent of the association to assist with governing document enforcement.
Authority To Generate Rules and Regulations
Florida law generally grants an association’s board of directors with the ability to promulgate a set of specific rules tailored to each unique association. The document containing the community association rules as created and approved by the board of directors is often called the “Rules and Regulations of the Association.” An association’s board, however, does not have carte blanche to establish any type of rule that comes to a board’s collective imagination.
The board must act within its scope of authority and reflect reasoned decision making rather than being arbitrary and capricious. See Beachwood Villas Condominium v. Poor, 448 So.2d 1143, 1144 (Fla. 4th DCA 1984). Regarding the scope of authority, this is determined by the express terms of applicable statutes and the association’s governing documents. Id. The rule must also be reasonable, meaning not violative of any constitutional restrictions and may not exceed any specific limitations set out in the statutes and governing documents. Id. In evaluating this criteria, it must be determined (1) whether a board is empowered to pass rules and regulations for the governance of the association; and (2) whether the topic of the rule in question is a legitimate subject for board rulemaking. See Mohani v. La Cancha Condominium Ass’n, Inc., 590 So.2d 36, 37 (Fla. 4th DCA 1991).
Where Rule Enforcement Begins And Ends
To determine the first item, the association’s governing documents must be examined. Id. While the Florida Statutes generally grant associations the ability to promulgate rules and regulations governing the details of the operation and use of the common elements along with the use, maintenance and appearance of the units (See Fla. Stat. § 718.112(3)), it is up to each association’s governing documents to actually convey the power of rule promulgation to the board. Some governing documents grant wide-ranging rule making authority to the board, while other governing documents may only grant rule making authority in limited areas, such as clubhouse or pool use.
To determine the second item, a rule will be found to be valid if it does not contravene either an express provision of the declaration or a right reasonably inferable therefrom. Mohnani, 590 So.2d at 37. If a rule contravenes an association’s governing documents it is invalid and unenforceable because the proper method for altering a provision found within the association’s governing documents is to properly amend the declaration or bylaws pursuant to the amendment procedures. Id. at 38. In the court’s view, this two-prong test concerning the validity of a rule or regulation is fair and functional and “safeguards the rights of unit owners and preserves unfettered the concept of delegated board management.” Beachwood Villas Condominium, 448 So.2d at 1144.
To summarize, an association’s board of directors generally has the authority and power to promulgate a set of rules and regulations to assist with the operation, use and maintenance of the common elements and units. However, an association’s governing documents may limit a board’s rule making authority to only certain areas. When a board does create and enforce a set of rules and regulations, it must ensure that the rule is within its scope of authority and that it does not contravene the provisions of the governing documents or violate any constitutional restrictions. It is recommended that an association’s board and manager consult with an experienced association attorney prior to implementing and enforcing a set of rules and regulations.
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