Recording Rules and Rule Changes in the Public Records

Most condominium and homeowners’ associations have the right to adopt and to amend rules and regulations.  The community declaration, articles of incorporations, and/or by-laws will often describe an association’s authority and procedures for adopting rules and regulations.  Also, the Florida Statutes expressly give associations’ boards of directors the right to adopt rules and regulations concerning a few specific matters.  

Generally, the purpose of rules and regulations is to have a malleable set of regulations and/or procedures that may be changed from time to time—often without the need for a membership vote—to reflect the evolving expectations of the community and/or to balance opposed interests that emerge.  Periodically, the question arises whether an association should record its rules and regulations and/or the changes to its rules and regulations in the public records. 

Rules and regulations are rarely required to be recorded in the public records.  However, to be effective, they need to be published or distributed in some way that makes owners and residents aware of them.  Periodically distributing an updated rulebook to owners, affixing copies of the rules and regulations to purchaser as well as to tenant applications, and posting the rules and regulations conspicuously on an association’s website are all good ways to publish and distribute the rules and regulations.  Also, if existing rules and regulations are amended or if new rules and regulations are adopted, it is necessary to publish and/or distribute such changes to the rules and regulations.     

If the rules and regulations have not been recorded in the public records, then recording them will place all persons (whether such persons are owners, tenants, guests, invitees, or other persons) on constructive notice of them.  This means that, since the recorded rules and regulations would be publicly available, people are deemed to be aware of them.  The benefit of recording the rules and regulations in the public records is that this presumption of awareness will make up for any irregularities and/or omissions that may occur in publishing and/or distributing the rules and regulations in other ways.  The downside to recording them is the expense of preparing them for recording, the frequency that recordings will be needed, the obligation to pay clerks’ recording fees that are charged by the page for each page that is recorded, and the risk that later boards might forget to record later changes.  

Perhaps of equal concern is that choosing not to record changes to the rules and regulations after the rules and regulations were previously recorded may result in undesirable inconsistencies between the earlier recorded rules and regulations (of which persons have constructive notice) and the more current unrecorded rules and regulations that are presently in effect.  To avoid such inconsistencies, some associations will decide that, regardless of the burden or expense, once the rules and regulations have been recorded in the public records, later changes to them also need to be recorded. 

Note that rules and regulations will sometimes be recorded in the public records by community developers as part of the text of the declaration or as an exhibit to the declaration.  In addition, there was a period of time a few years ago when, as a matter of statutory interpretation and compliance, homeowners’ associations were recording amendments of their rules and regulations.  If an association is not sure whether its rules and regulations have been recorded, its leadership should consult with legal counsel to find out.    

In conclusion, if your association recorded its rules and regulations in the public records in the past or is considering now recording its rules and regulations in the public records for the first time, consulting with legal counsel to weigh the pros and cons is recommended.  Mismanaging how rules and regulations as well as amendments to them are published and/or distributed may interfere with enforcement as well as invite defensive arguments.  Thus, it is prudent to be cautious.  In addition, it is also recommended to have legal counsel format any submission of the rules and regulations to the recording clerk to maximize the probability that the submission will be properly indexed when it is placed into the public records.