Port Saint Joe, FL asked in Real Estate Law for Florida

Q: Can florida home owners association board of directors vote to approve bylaws?

Our Florida homeowners association is 12 years old. We've only ever had CC&Rs. The new board has sent out a notice that in a day there will be a meeting and new bylaws will be passed. Never held a meeting to let us look over new bylaws or suggest changes. The board states they are able to approve a governing document without members voting with a 2/3 requirement. Why can they vote to implement a governing document but it takes 2/3 vote to change governing document?

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1 Lawyer Answer

A: CC&Rs and bylaws are two different documents. The CC&Rs are covenants, conditions and restrictions that run with the land and include affirmative covenants (duty to pay assessments) and restrictive covenants (restrictions on land use). The CC&Rs also give authorization to the HOA to operate and manage the association.

The bylaws are the rules for conducting annual meetings, board meetings, notice requirements for each, the voting process, if proxies are allowed, quorum requirements, and other various administrative duties and responsibilities.

Each document has its own amendment procedure and the CC&Rs could contain different amendment procedures for different sections of the document, such as amending the article providing for assessments. The CC&Rs likely authorize the HOA to adopt Rules and Regulations by a board vote. Rules and Regulations are used to clarify restrictions (not create new ones) and/or provide for rules for safety, such as pool use.

The default by statute is a 30% quorum to have the meeting with 14 days notice of the meeting and a copy of the changes using underline and strike-through mailed to each owner at their address of record and 2/3s membership vote to approve. Your documents could have something else and the statutory provisions only apply if your documents are silent.

It sounds like your HOA is adopting its first set of bylaws because they cannot find the originals (if they were not recorded in the county records) or the developer did not prepare any (it happens). This is just a guess on my part.

If you are unsure of what the HOA is adopting, how it should be adopted and if they are following the correct procedures, you should consult with an experienced HOA attorney to review your documents. You should also voice your objection if the HOA is attempting to do this with one day's notice and no copies of the documents to the owners.

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