Do I follow original deed restrictions or all future changes too

by Lynne Bernard
(Venice, Florida, USA)

Visitor Question: I just want to know if I have to follow and obey all deed restrictions and bylaws that I originally signed with my deed OR all the ones after that up to the present.

Editors Comment: We have that most frustrating of answers for you--it depends.

First, we have to say that Florida is among the states that have robust laws governing how master deeds, covenants, and HOA associations are established, administered, and allowed to expire. So state law governs most of all. This also pertains to a few other states in the Sun Belt of the U.S.

Second, the deed restrictions themselves most often address how the homeowners association (HOA) is formed and governed, and then give the HOA certain powers to establish additional rules that must be followed. A well-drafted master deed (a name often given the complete set of the original deed restrictions attached to a development) should actually give you the answer to your question, so we urge you to read it carefully.

The master deed also gives the HOA, or just its board, certain powers. Sometimes the HOA can write its own bylaws, which govern its behavior as an organization, much as a non-profit organization's bylaws tell what officers are elected, when, how, and so forth. Sometimes the bylaws are set up in the original master deed or otherwise set in motion by the developer when the developer still has a controlling interest in the project.

The original deed restrictions in most situations are considered synonymous with the CCR's (covenants, conditions, and restrictions). These address not the HOA's behavior as an organization, but items that the individual homebuyer must comply with. In a well-run state and community, the buyer should receive these documents before closing on the home, and you did.

Now comes the complex part. If your CCR's say that the HOA can make additional rules--often called exactly that, rules--then the HOA may be adding on all sorts of little things about where you will park, where you can charge your electric vehicle, the earliest date when you can put out Christmas lights, and all sorts of small and large behaviors or modifications to the exterior or even the interior of your home.

The original master deed also may say what happens if you don't obey the rules. Often the HOA is given the power to fine a non-compliant homeowner, and sometimes the HOA even has a right to hire the work done themselves and charge the homeowner. Owners who then don't pay these extra charges (and the monthly association fee of course) may have a lien placed against their property, and we even have heard of a forced eviction process in the name of the HOA.

At this point, then, we see that your master deed probably spells out what powers the HOA has, and if they can impose new rules, you will have to follow them.

This could get even trickier if a previous owner of your unit was able to impose a new deed restriction only on your unit. In most cases that would not happen because (a) the CCRs don't allow it, and (b) the HOA may retain ownership of the underlying land. However, in at least one state we have heard of a unit owner being allowed by a court to write a new deed restriction binding a future owner. But that is pretty bizarre and unusual. We think that if you just explore your original deed to understand fully the powers of your HOA, you will know the right answer to your question.

If not, you will have to consult with an attorney licensed in Florida for a close reading of all the relevant documents as well as state law and case law.

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