I am never at a loss to identify content for our firm’s newsletters. Instead, it’s often a decision of which “hot topic” should be addressed. I therefore took a cue from a good friend of mine to write this article (thanks Debbie!).
720.306 addresses amendments to governing documents, including several procedural requirements. The conundrum which has arisen following a recent change to Chapter 720 is whether board-made rules and regulations must be recorded in the public records. 720.306(1)(e) states, “an amendment to a governing document is effective when recorded in the public records of the county in which the community is located.” Several years ago, the definition of governing documents was amended by the legislature to add, “rules and regulations adopted under the authority of the recorded Declaration, Articles of Incorporation, or Bylaws and duly adopted amendments thereto.” It therefore follows that if rules and regulations are a governing document, 720.306(1)(e) would appear to require that it be recorded in order to be effective.
There is certainly a question as to whether a statute can create a condition for adoption of an amendment to a private covenant where the covenant itself does not include the same requirement. The legislature is essentially modifying the covenants by adding a condition to make a rule or regulation effective which the vast majority of Declarations/Bylaws do not require. Unfortunately, the risk of losing an enforcement case because the Board did not record rules and regulations is an unacceptable risk and I therefore recommend that rules and regulations be recorded.
Notwithstanding, many communities struggle with policies and procedures and whether or not those policies or procedures constitute “rules and regulations”. For example, if the Board adopts a collections policy which simply establishes the steps in the collection process, is this Board policy a “rule and regulation”? I believe the intent of the statute is to require that rules and regulations which restrict the use of property constitute “rules and regulations” for purposes of the statute. Consequently, I do not believe that Board policies and procedures which do not constitute use restrictions are “rules and regulations” for purposes of the statute.
As always, consult your Association counsel for specific guidance.