What an operating agreement governs under Florida law

Published by Vermilion Vitez Holding LLC, which sells LLC formation and resells registered-agent service fulfilled by Registered Agents Inc.

The steps, in order

1. What the operating agreement governs

   In Florida the operating agreement governs relations among the members as members, the rights and duties of a manager, the activities and affairs of the company, and how the agreement is amended. Where the operating agreement does not address a matter, the statute governs it (Fla. Stat. 605.0105).

2. How much weight it carries

   The chapter says its intent is to give the maximum effect to freedom of contract and to the enforceability of operating agreements. To the extent members, managers, or others have duties, including fiduciary duties, the operating agreement may restrict, expand, or eliminate those duties to the extent the statute allows (Fla. Stat. 605.0111).

3. When there is no operating agreement

   A company can operate without one. When it does, the default rules in the statute fill the gaps, because the chapter governs any matter the operating agreement does not provide for.

4. What the agreement cannot change

   Some provisions cannot be altered. An operating agreement may not vary the company's capacity to sue and be sued in its own name, the applicable law, or the requirements for registered agents and for records delivered to the Division of Corporations. It also may not eliminate the obligation of good faith and fair dealing, and it cannot relieve a person from liability for bad faith, willful misconduct, or a knowing violation of law (Fla. Stat. 605.0105).

5. A member-managed or manager-managed company

   A Florida LLC is member-managed unless the operating agreement or the articles of organization expressly provide that it is manager-managed (Fla. Stat. 605.0407). The articles may also describe limits on a person's authority (Fla. Stat. 605.0201), so manager-managed status and authority limits can appear in either document.

6. The filing that is separate

   Fla. Stat. 605.0201(2) lists what the articles of organization must state: the company's name, the street and mailing addresses of its principal office, and the name, Florida street address, and written acceptance of its initial registered agent. An operating agreement is not on that list, and the state does not file it.

   The document the state keeps is the articles of organization. If a member or manager knew filed information was inaccurate or it became inaccurate because circumstances changed, they must promptly cause the articles to be amended or file a statement of change or a statement of correction (Fla. Stat. 605.0202). Vermilion Vitez publishes free document templates for the internal agreement.