The Law Spot-Are your clauses allowed?

CAM Newsletter
February 2018

 

Are your clauses allowed?

Re-reading section 720.3075

 

If your homeowners’ association documents are in order, then they do not contain any null or invalid clauses.
Have you double-checked to make sure?

Section 720.3075 of the Florida Statutes states that public policy is violated when the inclusion of prohibited clauses in the association’s documents exist.  The documents include the declaration of covenants, articles of incorporation, bylaws or any other document meant to bind members to the association.

Prohibited clauses are those that would essentially allow (however written) a developer to unilaterally make changes to the documents association documents after the transition of homeowners’ association control in a community from the developer to the nondeveloper members; restricting the rights of or prohibiting the association from filing a lawsuit against the developer or allows the developer to cast votes in an amount that exceeds one vote per residential lot after the transition of homeowners’ association control in a community from the developer to the nondeveloper members.

Any clauses that fit the description and meaning of these are null and void as a matter of law and against the public policy of the state of Florida.

The statute also states that the documents may not preclude the display of one portable, removable United States flag by property owners, so long as the flag is displayed in a “respectful” way.   The documents may not prohibit any property owner from implementing Florida-friendly landscaping or create any requirement or limitation in conflict with a water shortage order (Part II, Chapter 383, F.S.).

Finally, the developer’s right to amend the association’s governing documents prior to the transition of control of a homeowners’ association from the developer to the nondeveloper members must pass a test of reasonableness, which means the developer may not unilaterally make amendments to the documents that are arbitrary, capricious, or in bad faith.  Any amendment may not destroy the general plan of development, prejudice the rights of existing nondeveloper members for the use and enjoyment of the benefits of common property or materially shift any economic burden to the nondeveloper members from the developer.

Take time to review your association documents to make sure you’re in compliance with the statute.

Click to read the statute

About Fred Gray

Fred Gray is the owner and President of Gray Systems, Inc and is a licensed general contractor in the state of Florida. Fred has been part of the Community Association Manager Continuing Education industry in Florida since 1988.
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