Most condominium, cooperative and homeowner association documents provide the Association with the power to adopt (or you may see the term “promulgate”) rules and regulations. This article will discuss some of the various trips and traps for you to avoid regarding same.
The first thing to look for is whether the power is to adopt rules and regulations regarding the property, common elements. Units, or some combination thereof. If the Association does not have the specific authority in the governing documents to adopt rules regarding unit use, an association would generally not be authorized to adopt rules regarding noise or nuisances emanating from the unit; guest occupancy of the unit; etc. While some of these types of provisions may be in the declaration, and as such viable, the board could not adopt additional or more restrictive rules regarding such items.
Once the authority is established, you must look to who can adopt rules. While most documents grant such authority to the board, some may require unit owner approval, notice to owners 30 days before such rules go into effect, or other types of restrictions or requirements before such rules can be adopted or effective.
If the Board has the authority to adopt rules, of course it can only do so at a duly noticed board meeting where the item is on the agenda.
If the rule concerns unit use, in condominiums and cooperatives, written notice of a meeting at which a nonemergency special assessment or an amendment to rules regarding unit use will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property at least 14 days before the meeting. Evidence of compliance with this 14-day notice requirement must be made by an affidavit executed by the person providing the notice and filed with the official records of the association. Failure to comply with the aforementioned requirements would invalidate any rule not properly adopted.
Changes in technology must also be taken into consideration. Electric Vehicles (“EVs”), motorized scooters, electric bicycles, hoverboards, and other items all have unique characteristics and can provide for unique problems. Having special rules for such vehicles in general is a good idea, and rules regarding what to do in regard to storm warnings, evacuations, etc., may need to be considered. Lithium-ion batteries are known not to work well when submerged in water (that may be an understatement – they can be a fire hazard).
In addition to the above, when considering new rules, they cannot be in conflict with any other provisions in the association’s governing documents. It is always a good idea, if not imperative, to work with your association attorney when considering and crafting new rules. I cannot tell you how many times associations have submitted draft rules for review that are flat against the law. Better to know that before such rules are adopted than after, when trying to enforce an illegal law.
To read the original FCAP article, please click here.
Howard J. Perl is a member of Becker’s Community Association practice and has been involved in all aspects of community association law, including transactional, collections, mediation, arbitration, construction defects and litigation. He is Florida Bar Board Certified in Condominium & Planned Development Law and is certified by the State of Florida as a facilitator for continuing education credit courses for Community Association Managers.