Board Fundamentals · Strategic Framework

Ten Things Your Board Can No Longer Do

Most of what gets a board sued is not a bad decision — it is a decision the board no longer had the authority to make. Statute, case law, and the governing-document hierarchy have quietly foreclosed a whole list of powers that volunteer directors still assume they hold. This is the inventory: ten things your board can no longer do, why each one is gone, and the move that replaces it.

The Bottom Line

The authority to govern a common interest community is not a feeling, and it is not a majority of the people in the room. It is a chain that runs from federal law, down through state statute, the recorded Declaration, the articles, the plat, the bylaws, and finally to the rules and resolutions a board adopts. Every governance question — “can the board do this?” — is answered by walking down that chain until you find an answer. Higher always wins. A bylaw cannot contradict the Declaration; a rule cannot contradict the bylaws or statute; a resolution cannot rewrite the rules. The diagnostic question CIC-SC teaches managers and directors is one sentence long: where does this come from?

Most of the ten items below were never truly the board’s to do. But for a generation, boards did them anyway — on the strength of “it’s been the rule for years,” a strong-willed president, or a quorum that confused agreement with authority. Statute and litigation have since drawn the lines sharply enough that the old habits now create personal exposure, voided enforcement, and lost insurance coverage. What follows is the working list, written so a volunteer director recognizes each one.

The Ten at a Glance

Each card states the old assumption, the rule now, and the path that replaces it. Read them as a single inventory, then take the items that apply to your community into the detail below.

Each item below states the old assumption, why it is gone, and the right move now. Where Texas and Florida diverge, the law is set out in parallel.

1. Amend the Declaration by Board Vote

The old assumption: A motivated board could change the community’s fundamental rules at a board meeting — ban short-term rentals, prohibit a use, change an assessment formula — because the board runs the place.

Why it’s gone: The recorded Declaration is the constitution of the community. It sits at Tier 3 of the hierarchy, above the bylaws, the rules, and every board resolution, because it is a recorded instrument that runs with the land and binds every buyer at closing whether they read it or not. Amending it is not a board power. Declaration amendments require a supermajority of the membership — commonly 67 or 75 percent of the votes, depending on the document — and the amendment must be recorded in the county records to take effect. A board that wants to prohibit short-term rentals in a community whose Declaration is silent generally cannot do it by board action at all; the change requires a member vote and a recorded amendment.

The right move: Treat the Declaration as the document you implement, not the document you rewrite. When the change you want is genuinely structural — it alters the character of the community rather than filling a day-to-day gap — the correct vehicle is a Declaration amendment proposed by the board and voted by the owners at the document’s threshold, then recorded. The board’s job is to propose it well and run the campaign honestly, not to substitute a rule for the vote.

2. Adopt a Rule That Conflicts With or Expands the Declaration

The old assumption: If the board could not amend the Declaration directly, it could at least achieve the same result by rule — a leasing restriction the Declaration never mentions, a pet ban where the Declaration allows a pet.

Why it’s gone: This is the same wall, approached from the side, and the courts treat it the same way. A rule that contradicts or expands the Declaration is not a weak rule — it is no rule at all, because the board does not have authority to amend the Declaration through rule-making. Lawyers call acting beyond your granted powers ultra vires, and it is the most common cause of overturned enforcement actions. The danger lives at the edge of implicit authority, where a board talks itself into a power that sounds reasonable but was never granted. “We can manage the common areas” does not become “we can ban a color of front door” when front doors are not common area and the Declaration is silent. The test is not is this a good idea? It is does a power we actually have necessarily require this?

Short-term rentals are the cleanest modern test. The Texas Supreme Court held in 2018 that a vacationer using a home as a temporary residence is still engaged in residential use — so a generic residential-use covenant does not, by itself, prohibit a short-term rental. A community that wants to restrict short-term rentals must put the restriction in the recorded Declaration and define it by duration, never by platform name; a ban that names one booking site is evaded by listing on another.

The right move: Before adopting any rule, confirm the Declaration grants rule-making authority over the topic, and confirm the rule implements rather than enlarges the covenant. If the honest answer is that the power is not there, the correct tool is a Declaration amendment by the owners — not a board rule.

3. Enforce Selectively or Target One Owner

The old assumption: The board enforces against the owner who is causing the problem this month, when a complaint comes in, and leaves the quieter violations alone.

Why it’s gone: Uniform application is one of the ten criteria a board rule must satisfy to be enforceable, and selective enforcement is fatal to all of them at once. The single most reliable way for an association to lose a rule-enforcement lawsuit is to cite the homeowner who complained while ignoring three other owners who committed the same violation in the past year. The rule must also be reasonable in purpose and application, non-arbitrary, non-discriminatory, and adopted in good faith — to address a community need, not to target an individual. An enforcement action that reads as personal hands the owner a defense and hands the board a counterclaim.

The right move: Before any enforcement action, have the manager pull a violation history for that rule across the whole community for the trailing twelve months. If enforcement has been inconsistent, fix it first — by noticing the others, or by adopting a clean go-forward enforcement posture — before pursuing the new violation. Enforce the rule, not the person.

4. Fine an Owner Without Written Notice and a Hearing

The old assumption: A violation justifies a fine, and the fine can go on the ledger as soon as the board votes it.

Why it’s gone: Both states now require a defined due-process sequence before a fine or suspension attaches. A fine imposed without it is procedurally void no matter how clear the underlying violation was. The owner does not have to prove they were innocent; they only have to prove the process was skipped.

Texas

Under Texas Property Code §§ 209.006 and 209.007, before an association may charge a fine or pursue enforcement, it must send written notice describing the violation, stating the amount of any proposed fine, and informing the owner of the right to a hearing before the board. Section 209.0064 provides the owner a cure period — 45 days, not 30 — to remedy the violation and avoid the charge where a cure is possible. The hearing, if requested, happens before the board, and the decision is recorded.

Florida

Under Fla. Stat. § 720.305 for HOAs and § 718.303 for condominiums, a fine or suspension may not be imposed without first giving the owner written notice and an opportunity for a hearing before an independent committee — a committee of members who are not board members, officers, or their relatives — with at least 14 days’ notice of the hearing. If the committee does not agree with the fine, it cannot be imposed. The hearing committee is a structural check the board cannot staff with itself.

5. Make Decisions Outside a Properly Noticed Open Meeting

The old assumption: If a majority of directors agree by phone, email thread, hallway conversation, or group text, the board has decided — the meeting is a formality to ratify what everyone already knows.

Why it’s gone: The board acts only as a body, in a meeting, on the record. A decision reached by serially polling directors one at a time — a walking quorum — or by a reply-all email chain, or a group text vote, circumvents the open-meeting requirement and is vulnerable to challenge even when the substance is sound. The point of the open meeting is not ceremony; it is that owners are entitled to see the deliberation that produces the decision, and the deliberation is what earns the board its legal protection later.

Texas

Texas Property Code § 209.0051 governs open board meetings: members are entitled to attend, and notice must be posted in advance for any meeting at which the board takes action. Board action by secret serial agreement defeats the statute. Texas condominiums under Chapter 82 (§ 82.108 governs board powers) carry a parallel open-meeting and notice framework.

Florida

Fla. Stat. § 720.303 (HOAs) and § 718.112 (condominiums) require that board meetings be open to members and noticed, with limited statutory exceptions. A decision assembled by group text or email outside a noticed meeting is not a board decision the statute will recognize.

6. Restrict Owner Rights That Statute Protects

The old assumption: The Declaration and the board’s aesthetic rules control what an owner may display, install, or place on their property — flags, antennas, panels, signs, chargers — and the board can say no.

Why it’s gone: A whole category of owner conduct is now protected from the top of the hierarchy down, by federal law and by state statute, and the Declaration cannot authorize what those higher authorities forbid. Four federal regimes recur in association practice. The Fair Housing Act (42 U.S.C. § 3601 et seq.) bars discrimination by protected class and requires reasonable accommodations and modifications for disability — for example, allowing an assistance animal in a community with a no-pets rule. The FCC OTARD rule (47 C.F.R. § 1.4000) limits how an association may restrict satellite dishes and certain antennas, regardless of what the Declaration says. The Housing for Older Persons Act permits an age restriction only where the association meets the 80-percent-occupancy test, publishes a written age policy, and verifies resident ages on a cycle. IRC § 528 governs the association’s federal tax posture. On top of the federal floor, both states statutorily protect categories the board once controlled by rule — flag display, religious display on a door or doorframe, solar energy devices, and electric-vehicle charging. The board cannot foreclose these by covenant or rule; at most it may impose narrow, reasonable, statutorily permitted conditions.

The right move: When an owner request touches one of these protected categories, the first question is not “does our rule allow it?” but “does a higher authority protect it?” Treat an FHA reasonable-accommodation request as an interactive obligation, not a discretionary favor. For OTARD, flags, religious displays, solar, and EV charging, confirm the narrow band of conditions the statute actually permits before saying no to any part of the request.

Texas

Texas Property Code Chapter 202 governs restrictive covenants generally and tells courts to construe them to give effect to their purpose, while § 202.004 gives an association’s discretionary enforcement a presumption of reasonableness. That presumption does not survive a conflict with a higher protection: where Chapter 202 or a specific protective statute shields the conduct, the covenant yields.

Florida

Florida’s HOA and condominium statutes (Ch. 720 and Ch. 718) carry their own protective provisions paralleling the federal floor for display and energy-device rights. The board’s architectural authority operates within those protections, not over them.

7. Freely Waive Structural Reserves

The old assumption: Reserves are a budgeting choice. A board that wants to hold the assessment flat can vote to waive or reduce the reserve contribution and tell owners the building will be funded later.

Why it’s gone: The post-Surfside reforms removed that flexibility for the components that keep a building standing. The board can no longer treat structural reserves as an optional line it trims for political comfort.

Florida

For qualifying condominium and cooperative buildings, Fla. Stat. § 718.112(2)(g) and § 553.899 establish the Structural Integrity Reserve Study (SIRS) regime. The association must commission a SIRS for the structural components the statute identifies, and reserves for those components cannot be waived or reduced below the study’s funding. A budget that quietly drops the structural reserve to hold the assessment flat is no longer a permissible board judgment — it is a statutory violation, and in litigation it reads as concealment.

Texas

Texas does not impose an equivalent statutory structural-reserve mandate, so reserve funding remains primarily a fiduciary and governing-document question rather than a statutory one. But the duty of care still applies: a Texas board that underfunds reserves against a current reserve study, with no documented basis, exposes itself to the same breach-of-fiduciary-duty theory by a different route. The discipline — fund to the study, document the trade-off openly — is the same in both states.

8. Let One Director — Even the President — Act Alone

The old assumption: The president runs the association between meetings and can approve a repair, sign a contract, hire the attorney, or settle a dispute on the board’s behalf.

Why it’s gone: No individual director, including the president, has authority alone. Authority belongs to the board as a body, exercised in a meeting, on the record. The president is the chair of that body and a single vote on it — not a chief executive with independent power. Decisions reserved to the board — adopting or amending rules, policies, and budgets; hiring or firing the manager, attorney, or auditor; deciding enforcement — cannot be delegated to one person and cannot be made by one person. When the manager says “the board needs to decide this,” that is not bureaucracy; that is the manager protecting the directors from acting outside their authority.

The right move: Reserve board-level decisions for the board. The president may chair, communicate, and execute documents the board has already authorized by vote — but the authorization comes first, from the body, on the record. A president acting without that vote is acting ultra vires, and that is one of the ways directors lose the shield.

9. Hand a Committee the Power to Levy Fines or Sign Contracts

The old assumption: The architectural committee, the fining committee, or the finance committee can be empowered to make binding decisions — approve a project, levy a fine, sign a vendor agreement — so the board does not have to.

Why it’s gone: A committee advises, investigates, and recommends; the board retains the powers the documents and statute reserve to it. The board cannot delegate away the authority to levy a fine, to spend outside the adopted budget, or to bind the association by contract. There is one important nuance in Florida: the due-process hearing committee in § 720.305 and § 718.303 is required to be independent of the board precisely so it can check the board — but its role is to confirm or reject a proposed fine, not to originate enforcement policy. That is a limit on the board, not a delegation of the board’s power.

The right move: Charter every committee in writing with a clear scope: what it reviews, what it recommends, and what stays with the board. Let the architectural committee recommend approval; the board ratifies or the documents expressly delegate the approval within stated standards. Let the finance committee analyze the bids; the board awards the contract. The levy, the spend, and the signature stay at the board table.

10. Decide in Anger, Without an Informed Record

The old assumption: The board’s decisions are protected by the business judgment rule and director immunity, so the substance of a call — and the manner of making it — is the board’s business.

Why it’s gone: The shield is real, but it is earned, and it is forfeitable. The business judgment rule protects a good-faith, informed decision made within the board’s authority — the standard the Texas courts apply through the § 22.221 fiduciary inquiry, descended from Levandusky v. One Fifth Avenue (N.Y. 1990) and Lamden v. La Jolla Shores (Cal. 1999). Directors lose the shield by acting outside authority, by self-dealing or voting on a conflict, by gross negligence or willful misconduct, by letting the corporation lapse, and by deciding in anger without an informed record. Every one of those is a process failure, which means every one is preventable.

The most common shield-killer is the meeting that never happened on paper. The business judgment rule and statutory immunity both depend on a record showing the board deliberated, considered the facts, and decided in good faith. If the minutes say only “motion carried,” there is nothing for a court to defer to. And the angriest exclusions are the most expensive: in one community, a director called a fellow director a “thief” out loud in an open meeting; the resulting defamation claim fell into the D&O policy’s exclusion for intentional, malicious conduct, and the association paid roughly thirty thousand dollars out of operating funds — money that came straight from every owner’s assessments.

The right move: Deliberate hard, even harshly, about the issue; never about the person. Keep character and personnel matters inside executive session and out of the record. And make the minutes show the deliberation — the facts considered, the options weighed, the reason for the call — because that file is the deference, and it is the exhibit your defense lawyer prays exists.

The Common Thread

Read the ten together and a single discipline emerges. Nine of these failures are not failures of intention — the boards meant well — but failures of authority and process. The board reached for a power it did not have (1, 2, 6, 7), exercised a power it did have in the wrong way (3, 4, 5, 10), or let the wrong actor exercise it (8, 9). Every one of them is answered by the same two-question habit CIC-SC teaches: where does this come from? and are we exercising it the way the higher document requires? A board that asks those two questions before it acts will rarely find itself on this list.

Key Takeaways

• The Declaration is implemented, not rewritten. Structural change is a member vote and a recorded amendment — never a board rule.
• A rule that expands the Declaration is no rule at all. Confirm the grant of authority and stay within it, or you are acting ultra vires.
• Selective enforcement is fatal. Pull the 12-month violation history and fix any inconsistency before you act.
• No fine without process. Texas: written notice plus the 45-day cure under § 209.0064 and a board hearing (§§ 209.006/.007). Florida: written notice and a 14-day hearing before an independent committee (§ 720.305 / § 718.303).
• The board acts only as a body, in a noticed open meeting. No walking quorum, group text, or reply-all vote (§ 209.0051; § 720.303 / § 718.112).
• Protected rights win. FHA accommodations, OTARD dishes, flags, religious displays, solar, and EV charging sit above the board’s architectural authority.
• Structural reserves are not optional in Florida. The SIRS regime (§ 718.112(2)(g); § 553.899) bars waiving reserves for listed components.
• No one director governs alone — including the president — and no committee levies fines or signs contracts in the board’s place.
• The shield is earned by clean process. Deliberate the issue, never the person, and make the minutes show the reasoning.

Related in This Series

• The Eight-Tier Hierarchy of Governance Authority
• The Declaration Is the Constitution — What the Board Cannot Override
• Due Process Before Fines — The Hearing the Board Cannot Skip
• Open Meetings and the Walking Quorum — Decisions the Board Cannot Text

References & Sources

1. Texas Property Code § 209.0051 — Open board meetings, attendance, and notice.
2. Texas Property Code §§ 209.006, 209.007 — Notice and hearing before enforcement.
3. Texas Property Code § 209.0064 — 45-day cure period for violations.
4. Texas Property Code § 82.108 — Uniform Condominium Act, board powers.
5. Texas Property Code Ch. 202, § 202.004 — Restrictive covenants and the presumption of reasonableness.
6. Texas Business Organizations Code §§ 22.221, 22.235 — Director fiduciary standard and statutory immunity.
7. Florida Statutes § 720.305 — HOA fines and suspensions; 14-day hearing before an independent committee.
8. Florida Statutes § 718.303 — Condominium fines and the hearing committee.
9. Florida Statutes § 720.303 / § 718.112 — Open board meetings, notice, and budgets.
10. Florida Statutes § 718.112(2)(g) and § 553.899 — Structural Integrity Reserve Study (SIRS) requirements.
11. Fair Housing Act, 42 U.S.C. § 3601 et seq.; FCC OTARD rule, 47 C.F.R. § 1.4000; Housing for Older Persons Act; Internal Revenue Code § 528.
12. Levandusky v. One Fifth Avenue Apartment Corp., 75 N.Y.2d 530 (1990); Lamden v. La Jolla Shores Clubdominium Homeowners Assn., 21 Cal.4th 249 (1999) — the business judgment rule and judicial deference.
13. Hyatt & Stubblefield, Community Association Law — the ten enforceability criteria for a board rule.

Tags: board authority · governing-document hierarchy · ultra vires · selective enforcement · due process · open meetings · walking quorum · OTARD · FHA accommodations · SIRS reserves · business judgment rule · § 209.0064 · § 718.303