Resolving Conflicts within Condominium and Homeowners Associations’ Governing Documents
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 GeneralIn 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 RestrictionsThe 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 RegulationsNext 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.
ConclusionBoard 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. This is not intended to be nor may be relied upon as legal advice.