The reason the house rules are not recorded is because of the fact that they are usually adopted by the board of directors and can also be quickly amended by the board, and therefore having to record would hinder the ability to freely and quickly amend the house rules when issues arise making it prudent to amend a house rule.
It usually takes a vote of the membership to amend the recorded governing documents (the declaration, bylaws and articles of incorporation), and because of this more laborious process, the added burden of recording is worth the result obtained by burdening the title to the land with the amendments.
When an association wants to add or change a rule to govern the community, the question always arises as to whether the change should go in the recorded declaration, with membership approval, or merely go in the house rules, with only the board of directors' approval.
Under Florida case law, a house rule must be considered "reasonable." However, a rule contained in a recorded governing document that was approved by the membership can be unreasonable as long as it is not "arbitrary, capricious or unconstitutional." An arbitrary rule would be one that would create two classes of owners. An example of an unlawful, two-class arbitrary rule would be a rule that would allow new owners to have two dogs when the existing owners are only allowed to have one dog. An unconstitutional rule would be a rule that would discriminate based on race or religion.
Examples of some arguably unreasonable rules that are quite legal and enforceable if approved by the proper vote of the membership and recorded as part of the declaration of covenants would be rules prohibiting all leasing whatsoever, rules allowing for the disapproval of "bad people" from moving in, or rules prohibiting pets or pickup trucks.
The reason rules regulations or covenants contained in the recorded governing declaration do not have to be reasonable is because the courts in Florida have decided that if the requisite majority vote of the members necessary to amend the declaration is obtained, then the unreasonable rules are what the majority of the people in the community want to live under and therefore they should be able to have and be able to enforce such rules that may seem unreasonable to many.
However, for a board of directors' adopted house rules, such rules are required to be reasonable because only the board voted on them and not the membership. These type of rules usually do not affect the direct use of the condominium unit or home itself by residents or guests but usually involve the use of, or have an effect on, the common areas or common elements. These rules would include pool rules, architectural and landscape rules, and rules regarding the use of the clubhouse or social room.
There is lots of flexibility in changing these house rules when need be because only the board has to vote on them. It is important to remember, though, that in condominium associations a notice of any board meeting to change house rules effecting units must be sent to the membership and posted at least 14 days before the board meeting to approve same. This is different than most board meetings that only require 48-hour member notice.
What would seem a reasonable rule to one person may seem totally unreasonable to another and the same difference could be made from one judge versus another or one jury versus another. Therefore, to get rid of the unreasonable question, sometimes its best to just go for a membership vote on the rule to be amended into the recorded governing declaration. If the proper membership vote is obtained and the declaration is amended properly, then the question of reasonableness disappears.
Last, it is good to remember that many of the original rules and regulations placed into the governing documents by the original developer no longer "fit" or "never really did fit" the community. The majority of the members of a community made up of older more homogenous type families may have and want many more restrictions of guests, tenants, and sources of noise, while the majority of the members in communities with a mixed diversity of all ages of families and/or mix of investment and full time residents may want less stringent restrictions.
Communities should periodically review all their rules and restrictions and see if there are some on the books that no one cares about and should be removed or come up with rules to put on the books that are sorely needed because of new issues that arise for which the governing documents are ambiguous or silent.
Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A. concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.