The building blocks of all homeowner’s associations are the community’s respective bylaws, administrative documents and house rules.
“The most fundamental documents are the declaration of condominium – which, in the case of a homeowners association, includes the articles of incorporation, bylaws and rules and regulations for the association,” says Attorney Robert M. Kesten, of counsel, at the law firm of Leslie Robert Evans & Associates, P.A. in Palm Beach. “The bylaws, rules and regulations and articles of incorporation are normally filed with the Department of Business & Professional Regulation (DBPR) for approval and once approved they are filed with the county clerk of the county the building project is located.”
“The declaration, corporate documents and initial rules and regulations are drafted by the developer,” notes Frankel. “The developer must submit the declaration to the Department of Business & Professional Regulation for review and approval. That review is generally for consistency and not to determine whether a declaration contains bad provisions that should be rejected. After the DBPR approves the declaration, the developer records it in the county where the subject real property is located, and at that point the condominium is created.”
Since the developer is guiding the process, Levine says the documents are geared towards a business transaction: develop the property quickly, sell the units, and move on to the next project. “Most of the time, the drafter is not really thinking about the operation of the association,” says Levine. “The developer has to run the association during the sale period, and a slow sales period could leave a developer in control for years. In my experience, developers’ counsel often doesn’t pay enough attention to the association’s documents.”