Q: Recently, the board of our homeowners’ association amended the community rules without filing the updated document with the county clerk. They only noted the change on our website. Can the board enforce a rule change that wasn’t officially recorded? (E.R., via e-mail)
A: Section 720.306(1)(b) of the Florida Homeowners’ Association Act outlines the procedures for amending “governing documents” of an association. The law requires that amendments to governing documents be recorded in the land records of the county where the community is located. After an amendment is recorded, the association must provide copies to the members within 30 days or notice of the amendment’s adoption, identifying the official book and page number or instrument number of the recorded amendment.
Proposed amendments to governing documents must include the full text of the changes, with new language underlined and deletions struck through. If the changes are so extensive that underlining and striking through language would hinder rather than assist the understanding of the proposed amendment, a notation must indicate “substantial rewording,” directing members to the current text in the governing documents.
The law was amended a number of years ago to include rules and regulations within the statutory definition of “governing documents,” which would require amendments to rules would have to follow all statutory procedures, including recording. However, in 2021, the law was again amended to delete rules and regulations as part of the statutorily defined “governing documents.” Therefore, recording the rules and regulations is no longer mandated by statute.
However, there are several legal requirements for board-made rules to be valid. It is first important to verify the extent of the rulemaking authority granted to the board by the governing documents. Some documents only grant the board rulemaking authority over the common areas, which is not a grant of authority to make rules regarding the “parcels” (the individual lots or homes).
Assuming the board has adequate rulemaking authority, board rules may not conflict with any right contained in the superior governing documents or any right which is “inferable” from governing documents. The courts have also ruled that rules adopted by a board must be “reasonable,” which is generally a stricter legal requirement than the standard imposed for owner-approved amendments to the governing documents.
Rules adopted by the board must also be adopted according to any procedures required in the governing documents and the procedures set forth in the statute. For example, the statute requires that notice of board meetings to consider rules affecting “parcel use” (use of the homes) must be posted in the community at least 14 days in advance of the board’s meeting, with certain disclosure requirements. Additionally, this notice must be delivered to each owner 14 days in advance of the meeting. Delivery may be by regular mail or email to any owner who has consented in writing to receive official notices in that fashion.
Internal requirements in governing documents vary. Some say nothing, and some are very detailed. For example, I have seen documents that require board adopted rules to be sent to all owners after approval by the board, and state that changes are not effective until they are sent out. Some documents even require a waiting period.
Various amendments to the Florida Homeowners’ Association Act adopted in 2024 will also come into play. For example, effective January 1, 2025, every HOA operating a community of 100 or more parcels will be required to have a website, and certain posting requirements will be required by that statute. Further, the 2024 amendments to the statute require that if “covenants or rules” are amended, a statutorily required notice must be sent to each owner, either sending them the new covenant or rule, or directing them to a website where the amended covenant or rule is posted.
Unfortunately, over the past decade, the law has made the rulemaking process much more complicated than it needs to be. It is a very good idea for the board to touch base with the association’s legal counsel to assist in navigating the required procedures.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.