Your Association’s “Governing Documents” – What Are They?

The term of “Governing Documents” describes a set of three documents, (i) the Declaration [the name of which varies by community for instance “Declaration, Covenants and Restrictions” or “Declaration of Protective Covenants” or any derivation thereof]; (ii) Bylaws, and (iii) Rules and Regulations. The Declaration itself has been often referenced in Florida case law as the “constitution” of one’s Association. The Declaration tends to be the most extensive of the three documents covering any number of topics, from defining what makes up a condominium unit’s parameters versus the common elements of an Association, maintenance related obligations, the collection of assessments, and a myriad of other Association substantive issues. The Bylaws are typically limited to procedural governance points pertaining to the make up of the Board of Directors, noticing of the various types of meetings, how voting is to occur, and other ministerial processes. Rules and Regulations are an amalgamation of supplemental items to be adopted by the Board of Directors. The Rules and Regulations must not contradict in any way existing language or provisions in the Declaration or the Bylaws. Rather, Rules and Regulations are there to fill in otherwise unspecified details or address points not addressed in the Declaration or Bylaws. A good example includes swimming pool operational rules. Importantly, what if conflict exists between these three sets of documents whereby the Declaration and the Bylaws address an issue in different ways. The Declaration prevails and takes priority over the Bylaws and the Rules and Regulations. If a conflict exists between the Bylaws and Rules and Regulations, the language of the Bylaws supersede and take priority over adopted Rules and Regulations. The Declaration, however, cannot unseat or run counter to existing statutory provisions, either Florida’s Homeowners Association Act, Fla. Stat. §720., et. seq. or Florida’s Condominium Act, Fla. Stat. §718., et. seq. depending upon if your community is a homeowners association or a condominium association. The same is true for that rare bread in Florida, a Co-Op community, governed by Fla. Stat. §719, which virtually mirrors Florida’s Condominium Act. Simply, when there is conflict with a provision in a declaration, bylaw, or rule, the statute and its language will always prevail. The resolution and analysis of the variety of issues and disputes which arise in a community association turn on the precise language and sometimes a single word in your Governing Documents. Understanding the general purposes of these three distinct set of documents and the relative order of priority is necessary in order to accurately take a position and establish proper policies for your community association.