A solid legal basis for your condominium or homeowners association is important



The collapse of the Champlain Towers building sparked renewed interest in the structural integrity of the building among many condominium associations and HOA associations. We see many associations operating older buildings launching tenders for a new technical examination of the structure.

Such an engineering study will ensure the solidity of the structural foundations of a building. But what about the legal basis of an Association? Is the legal basis strong when an association operates under old governing documents designed with the developer in mind rather than the end users (buyers) of the units?

Developer documents are written to help the developer sell as many units as possible as quickly as possible so the developer can cash in and move on to building the next development.

The developer will generally not be living in the project, so there is no personal incentive to necessarily make the documents user friendly. When there is no long-term commitment and quick selling is the watchword, these developer documents often won’t require the approval or disapproval of potential buyers or tenants or have protections. well thought out to prevent homeowners from modifying their units, homes, common element and limited common elements, or common areas or limited common areas without first obtaining the approval of the board of directors or an architectural review committee. Adequate restrictions on pets, vehicles and guests may be nonexistent or very inadequate. These type restrictions can be omitted by the developer’s lawyer who drafts the documents due to the developer’s client fear that they may inhibit or slow down sales.

If you restrict pets or smoking, the developer may think that sales to pet owners or smokers may be lost. If you have a process for approving potential buyers or tenants, people with insecure backgrounds might not apply to buy or lease. If you ban recreational vehicles, boats, or commercial trucks, another group of potential buyers could be lost.

Another problem with developer’s documents is that they won’t necessarily reflect applicable laws because the developer’s draftsman uses an old standard plate, or many laws have changed since the developer handed the project to owners. The result of this loophole is that the board of directors and executives can follow what outdated documents say only to later find out that they violate existing law on the matter, as the law could have changed significantly since the beginning. drafting of documents. This puts the Association in danger of being sued by disgruntled or dissident owners.

We get many calls from directors and officers of associations who have old developer documents because the documents are often ambiguous and do not address important issues adequately or clearly; such as who should maintain, repair, replace or insure which parts of units or houses, limited common elements and common elements or common areas (Association or Owner?). This can lead to increased legal fees for associations in addition to exposure to the liability of the board of directors.

The many issues that attempt to operate under old, outdated documents can be addressed by completely rewriting the Declaration of Co-Ownership or Declaration of Commitments (for HOAs), Articles of Incorporation, and Association Bylaws.

The process typically takes 3-9 months with legal counsel working closely with a document rewrite committee made up of a few committee members interested in the details involved in such a process. The lawyer will usually prepare the first draft for the committee’s review and input. Once the committee is happy with the product, it usually goes to the board for input from directors, and then input from any interested owner. Finally, a formal proxy vote will be taken from all members. After member approval, house rules and buy and sell requisition forms will be updated to comply with the new documents.

Usually, once an association has its new, well-drafted senior documents, calls for advice from legal advisers decrease and the corresponding legal fees decrease. Although legal fees will have to be incurred for a rewrite, the savings in future legal fees lessened by having a solid foundation of legal documents for your association are usually substantial. Additionally, directors and officers can sleep well once the association has new documents they can rely on to manage the community.

Rob Samouce is Senior Counsel with the Naples Law Firm Samouce & Gal, PA. He is a Certified Florida Bar Specialist in Condominium and Planned Development and focuses his practice on representing condominium associations, co-ops, and homeowners in all of their legal needs, including their association governance procedures, restrictive covenant enforcement, collection of contributions, contractual negotiations and disputes, real estate transactions, general business law, disputes relating to construction defects and other general civil matters. This column is not based on specific legal advice to anyone and is based on principles that may change from time to time. If you have any questions about the column, Rob can be reached at sandglawfirm.com.



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