HOAleader.com - Tip of the Week - August 24, 2012
Published: Fri, 08/24/12
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Are Ancient HOA Governing Documents Problems Waiting to Happen?
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In this week's tip, we discuss whether old-as-the-hills
governing documents are no biggie or a problem waiting
to happen.
Generally, governing documents age well. "Outdated
documents are often something newly elected board
members focus on, not realizing that bylaws don't
have a shelf life, and typically declarations of
covenant and bylaws don't become obsolete through
the passage of time," explains Harry Styron, an
attorney at Styron & Shilling in Branson, Mo., who's
drafted covenants for more than 100 subdivisions
and more than 40 condominiums. "Even though
nobody's looked at them in years, new ones would
look much like the old ones."
And some provisions you can just ignore. "Some
things boards point out really become surplusage
as circumstances change," adds Styron. "There may
be references to the developer and the developer's
role. If the developer's no longer in the picture,
you don't have to amend to remove those references.
You can just ignore them."
In addition, you have to follow the law no matter
what your governing documents say. "Generally
speaking, the laws supersede your governing
documents," explains Ben Solomon, founder of the
Association Law Group in Miami Beach, Fla., who
advises more than 500 associations and also
represents developers through his second law firm,
Solomon & Furshman LLP. "Your restrictive covenants
can be more restrictive than the law, but they
can't be less. If your governing documents are
less restrictive, you'd follow the law. We get
documents from the 1940s and 1960s, and those
associations still have to follow the law."
Solomon gives an example. "Let's say Miami ordinance
says no pits bulls are allowed, and your governing
documents say no pits or Dobermans are allowed,"
he explains. "The governing documents would be the
law you'd have to follow because you took title
to the property under these provisions. They'd
be enforceable. But if Miami law says no pits and
Dobermans, but your governing documents say only
no pit bulls, could you have a Doberman? No. You
need to follow current law-period. To the extent
your governing document are more restrictive, you
follow those unless they conflict with the law.
Then you go with a supremacy clause type concept
of following federal law first, state law second,
and then local law."
However, some experts say that outdated governing
documents are a cause for concern. Find out why in
our new article:
http://www.hoaleader.com/members/752.cfm
Best regards,
Matt Humphrey
President
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