Becker & Poliakoff

“HOA Rule Amendments Must be Recorded” – News-Press

“HOA Rule Amendments Must be Recorded” – News-Press

Becker & PoliakoffQ: Could you please tell me when the State passed legislation to require HOA’s to record its rules and regulations? (T.D., via e-mail)

A: As of July 1, 2018, homeowners’ associations are required to record amendments to their rules and regulations.

The recording requirement is the result of an amendment made to the Section 720.306(1)(e) of the Florida Homeowners’ Association Act. The statute requires the use of underlining and strikethrough and recording for all amendments to the “governing documents.” The term “governing documents” has historically included the declaration, articles of incorporation, and bylaws, but the statutory definition was amended several years ago to also include “rules and regulations.”

As a result, HOA’s must amend their rules as required by the statute and in order for such amended rules and regulations to take effect, they must be “recorded in the public records of the county in which the community is located.” However, there is no requirement that the previously adopted rules of the homeowners’ association be recorded, though if rule amendments are recorded, it would seem like a good time to record the original rules as well.

The law also requires that within 30 days of recording, copies of amendments to governing documents be sent to all owners. If the meeting notice where the amendments were adopted contained the text of the proposed amendments, the association only needs to send out a notice that they were recorded, a second copy is not necessary.

Q: As a condominium owner, do I have the right to obtain a copy of draft minutes of the preceding board meeting before the next board meeting where those draft minutes are to be approved? (W.H., via e-mail)

A: Yes, if the draft meeting minutes are in the possession of the condominium association at the time the written request is made.

Section 718.111(12)(b) of the Florida Condominium Act provides that the official records of the condominium association must be made available to a unit owner for inspection or copying within 45 miles of the condominium property or within the county in which the condominium property is located within 10 working days after receipt of a written request.

The Florida Condominium Act defines “official records” broadly. Specifically, Section 718.111(12)(a)6 of the Act provides that the minutes of all meetings of the condominium association, its board of directors, and the unit owners, constitute official records. Further, Section 718.111(12)(a)15 of the Act contains a “catch all” provision which appears to encompass all “written” records that relate to the operation of the association. In my opinion, unapproved minutes qualify as such.

Unapproved minutes have been the subject of an arbitration decision rendered by the Division of Florida Condominiums, Timeshares, and Mobile Homes. In one case, the Arbitrator found that it may be inferred that draft minutes, though unapproved, are also required to be maintained as official records, and made available to the unit owners. In another case, the Arbitrator also held that a management company employee’s draft meeting minutes became official records of the condominium association at the moment they are put in the possession of the condominium association. While decisions of the Division are not binding legal precedent, they are sometimes considered to be persuasive if presented in the course of legal proceedings.