What if there are conflicting provisions in a condo or homeowner association's governing documents?

Introduction

In Florida, condominium and homeowners associations are governed by Florida Statutes as well as an 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.

Generally, each of these association documents are carefully drafted to avoid conflicting provisions (or conflicts with Florida Statutes, which take precedence over the governing documents). Nevertheless, there are times when a provision in one document is or at least seems to be in conflict with a provision in another document. When that happens, the question often arises as to which document is controlling. The answer generally rests with the relative weight and authority that one document has over the other, namely the hierarchy established by law.

The Declaration of Condominium or Covenants and Restrictions

The declaration is the most extensive of the governing documents. Among other things, it provides the legal description of the property; establishes easements; distinguishes the property that belongs to unit or parcel owners from that belonging to the association (and the responsibility for maintenance and repairs as to each); and establishes the association’s right to levy assessments against owners for common expenses as well as collection rights, namely the association’s lien and foreclosure rights for the collection of assessments.

The declaration has been determined by the Florida Supreme Court to be an association’s constitution. See Woodside Village Condominium Association, Inc. v. Jahren, 806 So. 2d 452 (Fla., 2002) (internal citations omitted). The court determined: "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…."

As a 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 takes precedence.

Articles of Incorporation, Bylaws, and Rules and Regulations

Next in line is the association's articles of incorporation, which, among other things, establishes the legal name and principal address of the association, the number of directors, and the purpose of its existence.

The association's bylaws are next in line and provide the framework for the operation of the association. Conducting meetings of the members and of the board of directors, elections, quorum requirements, and voting rights, for example, are all provisions typically found in an association’s bylaws.

Lowest in the hierarchy is an association’s rules and regulations, which are generally based on authority granted in one of the governing documents higher in the hierarchy. A declaration may prohibit excessive noise, for example, or nuisances in general, and a rule or regulation may specify pool hours to lessen noise in the evening or early morning. Similarly, rules may specify where pets may be walked or that they must be leashed while in the common areas so as to avoid a nuisance which the declaration prohibits.

Because rules and regulations are based on some authority found in a governing document higher in the hierarchy, or in Florida Statutes, and because they typically address more routine operational matters as in the above examples, they are typically adopted and modified by an association's board of directors rather than by a vote of the owners. Still, rules and regulations must be reasonable, and must be uniformly applied.

Conclusion

Board 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. That is, in the event of a direct conflict between Florida Statutes and any of an association’s governing documents, Florida Statutes take precedence. However, what may appear to be a direct conflict in one provision or statute may be fully reconciled when more fully analyzing a provision in another section or statute.

Thus, it is important to keep in mind that this discussion is not intended as legal advice but rather solely as a foundation for a discussion with the association’s legal counsel so that the facts and circumstances of a particular situation, and the particular provisions of an association’s governing documents—which vary from association to association—may be thoroughly analyzed.