Are Ancient HOA Governing Documents Problems Waiting to Happen?

August 24, 2012

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 "Outdated documents are often something newly elected board members focus on, not realizing that bylaws don't have a shelf life, and typicallydeclarations of covenant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However, some experts say that outdated governing documents are a cause for concern.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, Are Seriously Outdated HOA Documents a Problem? Discussion Forum Follow–Up

Best regards,
Matt Humphrey
President