Words Matter: Is Your Board Precise with Its Terminology?
When you go to your doctor, it is helpful if you can accurately describe your symptoms so he or she can properly diagnose the problem. The same holds true when a volunteer board of directors meets with its legal counsel.
Boards can inadvertently make a legal diagnosis more difficult when describing a problem by not being concise with certain terminology.
For example, many directors will refer to a certain provisions being in their “Bylaws” as if it was a catchall term encompassing all of their documents. In fact, the Bylaws are one of several governing documents which comprise the foundation for association operations. In a condominium association, you will have a Declaration of Condominium, Articles of Incorporation and Bylaws. In a cooperative association, you will find Bylaws and a Proprietary Lease but no declaration. In a homeowners’ association, your community will be governed by a Declaration of Covenants and Use Restrictions as well as a Bylaws and Articles of Incorporation. All of the foregoing shared ownership communities will also typically have separate rules and regulations.
When your board refers to your “Bylaws”, your legal counsel is already picturing a certain document depending on your community type and it may not be the document to which you are actually referring.
Another area where directors can sometimes mislead association counsel and others is by referring to their community as a “homeowners’ association” when, in fact, it is actually a condominium or cooperative association. True, every community is comprised of homeowners but an HOA is a very different entity than a condominium, timeshare, mobile home or cooperative community. When referring to your community either internally to other directors and members or to professional advisors and vendors, please use the correct term.
Lastly, some directors (and association members) still refer to Florida associations being subject to “the Sunshine law”. While each of Florida’s shared ownership statutes do require a certain level of transparency in association operations, Florida’s Sunshine Law (Chapter 286, F.S.) pertains to governmental entities and not to private residential communities so saying that your association is “subject to the Sunshine law” is not technically correct.
Remember, being precise (and accurate) in the terms you use to describe your community and its issues can only help shorten the time it takes to diagnose and resolve those issues.