Real Estate Law, Condominium, Cooperative, and Homeowner Association Law
Sometimes we are asked to advise a community association about a matter relating to its documents which are two or three decades old. Such documents are frustrating to work with because they invariably contain provisions which are ambiguous, in conflict with current law, or unreasonably restrictive and burdensome. Since the time documents of that vintage were drafted there have been major rewrites of the laws applicable to condominiums, cooperatives and residential homeowners’ associations. Every year the Florida legislature creates new laws and this year is no exception.
It is not possible for even the best written documents from two or more decades ago to begin to comply with the requirements of the law today. There may be subjects which were not in the law when those documents were drafted such as the current manner of holding elections, restrictions on the use of a general proxy, fines, electronic communications and hurricane shutters. Additionally, the courts and the Division of Condominiums regularly grind out new decisions.
The Board of Directors is in a difficult position when attempting to rely upon a set of outdated documents, often drafted by the developer who has long since disappeared and whose original perspective is different from the challenges facing an association today. The Board runs the risk of incorrectly relying on outdated documents as if they were in fact the law; the consequences of so doing could be dire and create liability. An inadvertent consequence is that it may discourage potentially worthwhile candidates from running for the Board.
The cost of updating documents is relatively inexpensive and may prove to be a worthwhile investment. In some cases there will need to be selective amendments only covering various subjects. In most cases, the best approach is to simply replace the old documents with new “amended and restated” documents.
One of the benefits of updating documents is the opportunity to educate and remind directors and owners alike as to rights, obligations and responsibilities. It forces everyone to review the proposed changes prior to voting. Owners may never have even read the documents except for a cursory overview prior to closing.