First and foremost, Sachs Sax Caplan would like to wish everyone a happy and healthy new year! We know that this is a time for many people to make resolutions for the upcoming year ahead. One resolution that many Associations may wish to make in 2023 is revisiting their rules and regulations. Many Associations may have outdated rules and regulations that need to be updated and amended. Other Associations may have been lax in their enforcement of rules and may need to republish their rules and restrictions, so that they may be properly enforced on a moving-forward basis.
If you are an Association, whether a Condominium Association or Homeowners Association, that has not been uniformly enforcing your rules and regulations, Florida law allows you to go through a republication process whereby you send a letter to the community republishing the rule or restriction that has not been properly enforced which will allow you to enforce those rules on a moving-forward basis. If you have any such restrictions, whether they are in your rules and regulations or in your Declaration of Covenants or Declaration of Condominium, it is important to avoid selective enforcement issues in the future, you republish this rule or restriction and “clean the slate” on a moving-forward basis. You can send the rules and regulations or other restrictions out to the community with a cover letter stating that the Board of Directors, on a moving-forward basis, will be enforcing these restrictions. Any pre-existing violations that were not enforced would likely need to be grandfathered, but at least this will allow the Associations to be in a better position to enforce these revitalized rules and regulations and other use restrictions.
Also, this may be a good time for Associations to evaluate existing rules and regulations and to determine whether they need to be updated or amended. It is important to remember that, while rules and regulations may be adopted by the Board without needing a membership vote (unless the documents specifically require a membership vote), if you are adopting or amending rules and regulations that regulate the use of Condominium units or the individual homes and lots in a Homeowners Association, such a meeting must provide 14-days’ notice to members of the Association. While the members may not have a right to vote on these rules and regulations, you still do need to provide a 14-day notice, and such notice must be both posted in the community in a conspicuous place, as well as mailed to all owners (or emailed to owners who consent to receiving notices by electronic transmission).
Finally, when working on amending or adopting new rules and regulations, it is important to make sure that your rules and regulations do not conflict with the Declaration of Covenants or Declaration of Condominium. It is important to make sure that the issue that you are attempting to address in the rules and regulations is something that is properly contained in the rules and regulations, as opposed to your Declaration. Many restrictions, such as leasing restrictions, are more properly placed in the Declaration which is a superior document and clothed with the highest presumption of validity. Therefore, when moving forward with amending or creating rules and regulations, it is very important that Associations consult with legal counsel to make sure they are giving proper notice of any and all such meetings to approve such rules, as well as to make sure that the topics addressed in the rules and regulations are properly addressed in the rules, as opposed to the Declaration.
Steven G. Rappaport is a Partner in the Community Associations Practice Group and handles transactional matters for the firm’s community association clients, including drafting amendments to governing documents, attending Board meetings and elections, handling covenant enforcement disputes, and providing opinions on all aspects of association issues. Learn more about Steven and how to work with him here.
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