QUESTION: Our condominium association went through the transition of control to the owners more than 17 years ago. The rules have not been changed since and many have not been enforced in recent years.
I'm told that some of the original rules are contained in the original condo documents so they can't be changed. I have also been told that we can't make changes that are in conflict with laws and documents that are "above" the rules. I'm considering being on the rules committee to rewrite the rules but I'm confused. Don't we have the right to make rules like allowing glasses in the pool area during a community event if that's what we want?
ANSWER: In short, yes and no. You can make the rules that you want but they must not conflict with superior statutes and laws, municipal codes, the declaration that established the association, condominium documents or bylaws. For example, the prohibition of glass in the pool area is probably a local Health Department code and therefore a "law."
The first step is to assure that the condominium documents provide rule making authority and how far this authority extends. Does it only pertain to common areas?
The committee will probably make a list of new rules, rules to discard as obsolete or perhaps an entire new set of rules. Sometimes the rule document references the language in the superior document. Sometimes the rule found in the superior document is simply re-stated in simple language as one of a list of rules. In any case, these rules must not conflict with the superior documents.
Whether the rule-making authority rests solely with the board or if a membership vote is required, gaining input from the members is helpful. The process for adopting new rules designated in the governing documents must be followed.
Once the new rules are in place, they should be distributed to all the members, made readily available on an ongoing basis such as being posted on the web site and provided to new residents and renters.
The rules must be enforced consistently and in a manner that is not arbitrary.
There may be some conflict among residents about some of the new rules, especially if "grandfathering" is minimal. It is best to seek the advice of an attorney to advise about the best process to minimize the chances of a lawsuit.
Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is at 1215 Miramar St., in Cape Coral.
This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.