Objection! Enacting Board Rules & Regulations

By Senior & Founding Partner Neal McCulloh

Senior & Founding Partner Neal McCulloh

It is true that after the required notice, boards can generally enact rules & regulations, via a board vote at a duly called board meeting. However, that does not mean such rules and regulations will be valid, binding, effective and enforceable. Determining the validity, effectiveness and enforceability of board adopted rules & regulations depends on various factors.  Moreover, such rules & regulations may have significant limitations.

Unlike provisions within an association’s declaration, which generally can be, at least to a degree, unreasonable and still be enforceable, board adopted rules & regulations must be reasonable to be enforceable. As such, they can always be challenged as being unreasonable.

Given the above, board adopted rules & regulations have a higher degree of challengeability and a greater chance of being found invalid, ineffective and/or unenforceable than restrictions found in the declaration.[1] Please understand, to be enforceable, such rules & regulations cannot conflict with the law or a superior document, including the association’s declaration, articles of incorporation and bylaws.

Because of the above limitations, if your association is considering enacting board rules and regulations, you may first want to evaluate, with counsel, whether such rules and regulations would be enforceable or whether they need to be enacted by an amendment to the declaration. [2] Even if the proposed rules have an excellent chance of being enforceable, the association may still want to enact the desired restrictions by an amendment to the declaration.

Despite the above limitations, board adopted rules & regulations may prove helpful if not necessary. Additionally, associations may want to enact them, at least on a temporary basis, while the association implements essentially identical provisions to its declaration by duly adopted amendment(s). Of course, as alluded to above, we must recommend that associations involve their counsel (e.g., have counsel draft such rules and regulations or at least proof those being recommended for adoption by the association) to lessen the risk, including the risk associated with such rules and regulations conflicting with:

1.      the Florida Statutes;

2.      the association’s declaration;

3.      the association’s articles of incorporation; and/or

4.      the association’s bylaws.



[1] Note – some communities refer to such document as their covenants and restrictions, CC & R’s, etc.

[2] Note: for co-ops Clayton & McCulloh prefers the restrictions be placed in the bylaws.