Florida law generally requires that Homeowner Associations’ (HOAs) bylaws grant the HOA the authority to adopt reasonable HOA rules and regulations. These rules usually concern common elements, common areas, and recreational facilities. 718.112, F.S. Florida law as well as HOA bylaws often give HOAs broad powers to regulate the homeowners’ use of common property (property that services the community as a whole). But, are the rules adopted by an HOA board always enforceable?
In order to know the answer to this question, there four questions one must ask:
1. Does the HOA have the power to pass such a rule under the bylaws? HOA bylaws sometimes limit the scope of what kinds of rules can be enacted and against whom they can be enforced. One example of a rule that was being improperly enforced against one of Raymond Carrero, P.A.’s clients involved a rule that prohibited the parking of cars on the lawn in front of the client’s home. Under the bylaws in that case, the HOA was empowered to enact rules concerning the common areas. In reviewing the declaration, we discovered the the lawn in front of our client’s home was not considered “common area” and therefore was not the proper subject of such a rule. We successfully argued that the rule was unenforceable and the HOA wisely withdrew its claim.
2. Does the law prohibit such a rule? There are certain rules that, while appearing to be reasonable and necessary, are simply prohibited by law. For instance, if a rule or regulation violates the Americans with Disabilities Act (ADA) or the federal Fair Housing Act, its enforcement would be prohibited. Even Chapter 718 itself prohibits an HOA from unreasonably restricting unit owners’ rights to peaceably assemble. These are just some of the examples where a law might prohibit an otherwise seemingly enforceable rule.
3. Was the rule enacted via the proper procedures under the bylaws?
HOA bylaws generally contain procedures that must be followed when a board enacts rules and regulations. The bylaws usually have certain requirements as to quorums (how many board members must be present to vote), how many votes are required to pass the rule or regulation, whether a general meeting of the members is required, whether members are allowed to voice their opinions and concerns prior to a vote, etc. If these procedures are not followed adequately, the rule may no be enforceable.
4. Is the rule being enforced in a proper and appropriate manner?
One of the most common complaints by homeowners about the enforcement of HOA rules and regulations is that the rule is being “selectively enforced” (meaning the board is enforcing the rules against one member, but is ignoring all other violators of that rule). The implication is that the board or management has a vendetta against a particular unit owner or particular owners. Many homeowners mistakenly believe that when they suspect a board or management of selectively enforcing rules, the homeowner is allowed to simply stop paying their monthly maintenance assessments; this is false for one simple reason: two wrongs don’t make a right. Even if a member can prove that she/he is the victim of selective enforcement, the member is not relieved of her/his responsibility to pay monthly assessments. However, when a member is legitimately the victim of selective enforcement, that member has rights which can be asserted against the HOA in order to make them stop enforcement.
In the many years that my firm has represented both homeowners and HOA boards, I’ve seen a wide range of issues related to HOA rules and regulations. Having represented both sides of these disputes, I’ve seen things from a unique perspective. If you’re on either side of any of these issues, please consult an attorney with experience for a full and complete consultation regarding your rights. A good lawyer will want to know the answers to the four questions posed here.