Q A couple of residents are complaining of noisy neighbors. There is an issue with some residents not adhering to the 80% carpet rule. As a result, the board voted that any new occupants be required to get wall-to-wall carpeting in all rooms, excluding the kitchen, bathroom, and closets. The residents are very upset over this. They say a resale highlight is the "hardwood floors" which are very popular nowadays. The board also put a $1,000 deposit requirement for new occupants until the carpet requirement is met. This doesn't help solve the current noise issue. Although I am on the board, I feel the residents are right. They are currently signing a petition for us to reverse the rule. Can you give me any feedback on this issue that might help us?

—Carpet-Bagger

A “If provided for in the association’s governing documents, the Board of Directors may have the authority to adopt reasonable rules and regulations,” explains attorney Russell Robbins of the law firm of Mirza Basulto & Robbins, LLP in Coral Springs. This authority to promulgate such rules may be included as an optional provision in the association’s bylaws pursuant to 718.112(3)(a), Florida Statutes. The rules and regulations of the association are similar to the restrictions and covenants set forth in the association’s governing documents, but are not ‘clothed’ with the strong presumption of validity and enforceability that apply to restrictions contained within the declaration. Therefore, rules and regulations enacted by the board cannot contravene an express provision of the declaration or a right reasonably inferable therefrom. Beachwood Villas Condominium, Inc. v. Poor, 448 So.l2d 1143 (Fla. 4th DCA 1984).

To be valid and enforceable, a rule or regulation of the Board of Directors must meet a two-tier test. First, it must be within the authority of the board to enact such rules and regulations. Second, the rule or regulation must be reasonable and not arbitrary and capricious. The rule or regulation is not enforceable; where it conflicts with the declaration of condominium (i.e. the association may not enact rules that limit rentals, where the association’s declaration does not place any restrictions on the rental of units—this would need to be accomplished by amendment to the pertinent portion of the declaration of condominium).

So long as the board has the authority to enact rules and regulations, it is likely that such authority extends to the promulgation of rules pertaining to allowable floor coverings within the condominium units. While unit owners are likely correct that improvements such as hardwood flooring may garner a higher resale price, the ability to install such flooring is likely not a right that is guaranteed to the owner under the association’s governing documents.

“Every may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be.”Stirling Village Condominium Association v. Breitenbach , 251 So.2d 685 (Fla. 4th DCA 1971). The preceding quote is from a 1971 case in which a unit owner similarly desired to enhance their condominium unit’s value by replacing a screened enclosure with glass jalousies.

Many associations have rules as to floor coverings due to the close proximity of units to each other and noise transmission between the condominium units. One of the most frequent complaints we get amongst neighbors in condominiums is the transmission of noise due to inadequacy of floor coverings to properly dampen sound. Many associations limit the type of floor coverings that can be used in portions of the condominium unit, or require installation of noise dampening material between the hardwood, tile or laminate flooring and the unit’s concrete slab. It is advisable that the association consult with their attorney for the drafting of an amendment to the declaration of condominium as to installation of noise dampening material, or the promulgation of a more clear rule that permits such flooring, as favored by the unit owners, so long as it is installed with noise-dampening material to minimize noise transmission between condominium units.

When the Board of Directors intends to consider enacting (or amending) rules and regulations regarding the use of the condominium units, notice of the Board of Directors meeting must be mailed or delivered to unit owners and posted conspicuously on the condominium property not less than fourteen (14) days prior to the meeting. The notice requirements for such a meeting are lengthier than an ordinary meeting of the Board of Directors.

On its face, it would seem that the Board of Directors possesses the authority to promulgate reasonable rules and regulations regarding the use of condominium units. Requiring a particular type of flooring or the installation of noise dampening material would seem to be a reasonable (and not arbitrary or capricious) use of its rule making authority. Requiring a deposit from purchasers until the unit complies with the association’s floor covering rule would also seem to be within the purview of the Board of Directors. The cost of filing for mandatory non-binding arbitration with the Department of Business and Professional Regulation, Division of Florida Condominium Timeshares and Mobile Homes (the “Division”) is paid up front by the association (as the filing party) and the fee would likely offset the costs associated with having the association’s attorney file the petition to order the unit owners compliance with the association’s governing documents.

Unfortunately, the unit owners do not have much say in the process if the two-prong test is satisfied. However, since the rules and regulations can be amended by the board at any time, the unit owners can petition to have the amendment of the rules and regulations added to the association’s agenda at the next Board of Directors meeting. Pursuant to 718.112(2)(c), Florida Statutes, if twenty percent (20.0%) or more of the voting interests in the association petition the Board of Directors to include an item of business, the item must be placed on the agenda for the next regular meeting of the board, or on an agenda of a special meeting at which the item will be addressed. In either scenario, the item must be addressed at a regular or special Board of Directors meeting within sixty (60) days of receipt of the petition. n