Q: My condominium association is considering implementing a new rule. They are unsure if the new rule can be applied retroactively to violators who broke the rule before it was enacted. If the board decides to enforce this rule, would they need to amend the bylaws, or can they implement and enforce this retroactively on their own? (R.M., via e-mail)
A: That is a complicated question and will depend on the nature of the restriction at issue and the provisions of your community’s condominium documents.
The first question to address is whether the board’s proposed rule is within the board’s authority. Board-made rules have been referred to by the appeals courts in Florida as “Tier 2” restrictions and are subject to greater scrutiny by a court.
The courts have established a series of “tests” that must be satisfied for a board-made rule to be valid. First, the superior documents (the declaration of condominium, the articles of incorporation, or bylaws) must confer rulemaking authority on the board. For example, some documents only allow the board to make rules regarding the common elements but confer no authority regarding the rules affecting use of the units.
Second, a board rule cannot conflict with any right conferred by the declaration of condominium or any right which is “inferable” from the declaration, a concept easier to state than explain. Next, board rules must be “reasonable,” which is obviously in the eyes of the beholder. By contrast, amendments to a declaration are not required to be “reasonable” to be enforceable. That is why, in a close case, amendments to the declaration are always the better.
Of course, board rules cannot illegally discriminate against persons who are members of protected classes or otherwise violate state, federal, or local laws. Finally, board rules must be adopted in a procedurally proper fashion, according to the requirements of the Florida Condominium Act and the condominium documents for the community.
Retroactive application is also tricky. There are clearly some situations where a rule can be applied to all owners moving forward regardless of their circumstances. For example, a rule that establishes where pets can be walked or how they should be cleaned up after could, in my opinion, be applied to all owners as to how they comport their future behavior.
Other rules clearly cannot be retroactively applied. For example, if a board adopted a rule setting weight limits for pets that could be kept in the community (assuming such a rule would be valid based on the “tests” set forth above), the association could not require people with “oversized pets” to remove them. At the very least, those pets would have to be “grandfathered.”
Although the courts have not drawn a legal “bright line” as to how you decide whether retroactive application is permissible or not, the concept appears to be one of what they call “detrimental reliance” in the law. Stated simply, using our pet example, an owner may have purchased a large pet or moved into the community with a large pet based on the knowledge that this was permitted, so they “relied” to their “detriment” (by spending the money on the pet or moving in with it).
Under the case law, it would be considered inequitable, and thus legally impermissible to change the circumstances for someone who has detrimentally relied on the old rules. These types of actions present a significant opportunity for owner disagreement and the potential for legal entanglement. As always, the board is best advised to loop in the association’s legal counsel and pay for the ounce of prevention.
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.