Richard White: Do state statutes override condominium bylaws?

Q. I am a member of a condominium association. I thought that I read that the state statutes override the condominium bylaws. Can you give me an example of a section of the statutes that deals with this issue?— D.P.

NaplesA. Let me start with what is called the "order of powers." It is more of an academic term than a legal term. It can be called "conflict of laws" or "choice of laws" meaning what a judge would use to determine the correct interpretation of a conflict in the laws. What it refers to is the line of laws and how they refer to each other. Normally, it defines which law will override another law if there is a conflict in the laws. When I refer to laws, it would also include condominium documents.

As an example, I will define a normal order of the powers: The highest order is the United States Constitution, federal laws, state constitutions and state laws.

In the case of condominium and homeowner association and cooperatives, they will be the next lower orders, starting with the Declaration or Covenants, Articles, and Bylaws, and then rules and regulations, in that order.

Say the bylaws require that a meeting notice must be posted 24 hours in advance of the board meeting, the state statute will override the bylaws as the statutes says that notices must be posted 48 hours in advance of the meeting.

There is an exception to the order of powers in that if the lower law is more restrictive, then the lower power will prevail. Let us use the same example but say the bylaws require a 72-hour notice. In this situation, the 72-hour posting must be used as it contains the 48-hour notice found in the statutes.

If you cannot determine which order overrides the other law you need to have an attorney help determine that situation. Remember that if you have an unresolved conflict in the documents and the statutes or within the sections of the documents then the final decision will be made by a judge in court.

Q. I live in an adult community in Florida. At our clubhouse, can we fly the American and Canadian flags side by side? I would expect that the American flag be properly positioned with the Canadian flag. What rights do I have in this country to fly my country's flag?— G.V.

Ft. LauderdaleA. With deepest respect to Canada and their flag, I can only refer you to the US Flag Code ( If your community does not have a second pole, the association would have to purchase and install a second pole. While I am not sure the type of pole your association now has, I looked up the cost and for the smallest commercial pole the cost is over $800. That does not include installation. Taller and larger commercial poles will exceed $2,000. It would also require approval of the members as it would be an alteration to the common areas. You can fly a Canadian flag at your home but you would need to follow flag etiquette.

Q. I live in a community in which the HOA has been hijacked. A family owns a number of properties in the community and controls the board. As a result, maintenance fees have been excessively low for the benefit of the family. Maintenance on the property has suffered and needs repairs because the board continually rejects any request by the members. I am at my wits end trying to get positive repairs and maintenance programs established. What recourse do I have to break up this HOA mafia?

— D.G.


A. The statute requires the board to maintain the common areas and properly operate the common area and association. The last way to force the maintenance is to sue the board. This will be expensive and time consuming. A better way is to try to educate the board by writing letters and telling them that the statute (FS 720) requires that the board properly maintain the association. Also explain that they must protect the members from a possible liability law suit if someone is injured. I am sure that the association's insurance agent would be concerned about the poor maintenance. I would try to explain that their poor maintenance lowers the value of the homes. Your best result would be to try to persuade your neighbors to become involved. Maybe at the next election you can vote out the current "mafia."

Q. I manage a condominium where our pool and deck has two gates. We have residents that never close the gate behind them. The gates are open wide enough to allow a toddler to enter the pool deck. We fear that this is a serious accident waiting to happen. Can we close one of the gates?— P.C.

OrlandoA. You can close and lock one gate but I do not believe that that would prevent the members from leaving the other gate open. I would seek to find an automatic gate closure and install it on both gates. Get the board involved to try to find out who leaves the gate open. Send them letters to explain that their action of leaving the gate open is creating an attractive nuisance. An attractive nuisance is the legal doctrine that anyone responsible for a dangerous condition on their premises which is likely to attract children is strictly liable for any injury and the legal duty to take all reasonable measures to reasonable protect children from the dangerous condition. I would also send a letter and post for all members of the problem. Ask that when they use the pool area, to be on the watch for anyone leaving the gate open. You should also look to find a gate closure. Most good closures are not expensive and can be simply installed. The short of the answer is that you need to get others involves to help by watching and reporting who opens the gates and send communications about the possible problem.