Over the past two weeks, we have been discussing the power and
authority of Boards to pass rules and regulations. We discussed
the fact that a board may have gone too far in making a rule as
they really did an unauthorized amendment to the declaration.
The question for today’s blog is what makes the rule or
amendment enforceable in either an arbitration proceeding or a
court of law?
In dealing with these issues, the courts have set some
guidelines. There are essentially two categories of cases in
which a condominium association attempts to enforce rules of
restrictive uses. The first category is that dealing with the
validity of restrictions found in the declaration of
condominium itself. (A Category One Restriction) The
declaration, which some courts have referred to as the
condominium's “constitution,” strictly governs the relationships
among the condominium unit owners and the condominium
association. As explained by the court in Pepe v. Whispering
Sands Condominium Ass'n, Inc., 351 So.2d 755 (Fla. 2d DCA
1977):
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. Stated otherwise, it spells
out the true extent of the purchased, and thus granted, use
interest therein. Absent consent, or an amendment of the
declaration of condominium as may be provided for in such
declaration, or as may be provided by statute in the absence of
such a provision, this enjoyment and use cannot be impaired or
diminished.
In the first category, the restrictions are clothed with a very
strong presumption of validity which arises from the fact that
each individual unit owner purchases his unit knowing of and
accepting the restrictions to be imposed. Such restrictions are
very much in the nature of covenants running with the land and
they will not be invalidated absent a showing that they are
wholly arbitrary in their application, in violation of public
policy, or that they abrogate some fundamental constitutional
right. See White Egret Condominium, Inc. v. Franklin, 379 So.2d
346 (Fla.1979).
The second category of cases involves the validity of rules
promulgated by the association's board of directors or the
refusal of the board of directors to allow a particular use when
the board is invested with the power to grant or deny a
particular use. (A Category Two Restriction)
Often times, associations are faced with making a decision as to
whether a particular policy that the Board wants to impose must
be accomplished by way of an amendment to the declaration or by
board-made rule. As you can see, the safer alternative is
always an amendment to the governing documents should a legal
challenge be made.