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Florida Condo & HOA Legal Blog

News & Updates on Condo & HOA Laws & Legislation in the State of Florida

Eligibility to Run for Condominium Board Depends on Governing Documents

Posted in Association Documents, Board Eligibility, Governing Documents

Hispanic Businesswoman Leading Meeting At Boardroom TableQuestion:  The wife of an owner (only the husband is on the deed) is running for the Board of our condominium association.  Is she eligible to run for the Board?  I thought you had to be an owner under Florida Law to serve on a condominium association Board?  D.A. via e-mail

Answer:  Florida law does contain certain minimum requirements for a person to be eligible to serve on the board of directors for a community association.  As an example, The Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes) requires a board member to be eighteen years of age or older.  Further, The Condominium Act (Chapter 718, Florida Statutes) contains certain eligibility requirements to serve on the board, including a prohibition on felons serving on the board, unless their civil rights have been restored for a period of no less than 5 years.  That being said, there is no requirement within Florida law for a person to be a “member” (i.e. name on the deed) of a condominium association before they are eligible to serve on the board.  Many condominium association governing documents, however, do require a person to be a “member” of the condominium association to be eligible to serve on the board.  The answer to your question will depend on the specific language contained within your condominium association’s governing documents.

Can My Condominium Association Remove Palm Trees?

Posted in Association Documents, Common Areas, Governing Documents, Landscaping, Material Alteration

ThinkstockPhotos-598161688Question: Our condo board wants to remove 44 mature Foxtail palms that shade the courtyards of our 22 coach home buildings. They claim their roots threaten the sidewalk pavers, but there are low cost solutions to address that concern.  The board also raises a concern regarding the palm fronds touching the roofs, but that is easily remedied by trimming the trees, which has been done before successfully. The palms are a beautiful amenity that we all paid for initially and which many people love. Six large upstairs windows look out on these lovely trees that also prevent the courtyards from becoming hot-house ovens in summer. Is an owner vote required to take down these trees and, if so, what percentage is needed for removal of these trees? R.W. via e-mail

Answer:  The answer to your question will depend on several factors, including the language contained within the governing documents and whether the threat posed by the trees to the condominium property necessitates removal.  Whether the removal of trees rises to the level of a “material alteration” to the common elements requires a fact-specific analysis.

Disputes regarding a condominium association board’s authority with respect to common element alterations are adjudicated in the State’s mandatory non-binding arbitration program. There have been a number of arbitration decisions dealing specifically with landscaping changes, but no bright line rule has been established.  In one case, the arbitrator noted that “when a tree is removed, the essential nature of the common elements is changed, which in turn may constitute an alteration of those common elements (whether material or not will turn on the facts in a particular case).”

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Jay Roberts Obtains Court of Appeals Reversal

Posted in Fair Housing Act

roberts_jBecker & Poliakoff senior attorney Jay Roberts recently scored a win for his condominium association client in a Fair Housing Act (FHA) ruling from the Florida First District Court of Appeal (Harbour Pointe of Perdido Key Condominium Association, Inc. v. James Henkel).

The appellate ruling has potentially broad implications for condominium associations. While all design and construction must comply with the FHA, Mr. Roberts successfully argued that as a subsequent operator of the condominium complex in question, the association was exempt from claims of design-and-construction discrimination liability related to the condominium developer’s failure to adhere to FHA guidelines.

Media inquiries should be directed to Andi Phillips, Media Director, andi@roarmedia.com, (305) 403-2080, Ext. 128.

Convicted Felons Ineligible for Condo Board Service in Florida

Posted in Board Eligibility, Elections

Portrait of brutal man in a business suitQuestion: My condominium association’s annual meeting is next month. Several of us are concerned because we have been told that one of the individuals running for the board was charged with felony security law violations. While he was apparently never convicted, a lifetime ban from the securities industry was imposed against him and he was required to pay fines. Is he eligible to run for the board? (C.P. by e-mail)

Answer: Probably. The Florida Condominium Act provides specific and limited disqualifications on eligibility to run for or serve on the board of directors. Relevant here, the statute states that a person who has been convicted of any felony in Florida or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board. If this person was not convicted of a felony, this provision of the Act would not apply.

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HOA Board Responsible For Meeting Minutes in Florida

Posted in Official Records, Reader Q&A

Business colleagues in a meetingQuestion: At the first meeting of the new board of directors of our homeowners’ association, there was concern about approving minutes of the last meeting of the prior board. Because the new members were not on the old board, they were hesitant to approve the minutes. Should the new board approve those minutes? (C.S. by e-mail)

Answer: Interesting question, but I believe the answer is yes. The Florida Homeowners’ Association Act requires that minutes be kept of all meetings of the board of directors of the association. The minutes must reflect the vote or abstention of each director present at the meeting. Further, minutes are official records of the association which must be kept by the association for 7 years, and must be made available for inspection by members. The statute does not address the process for approving minutes, particularly when there has been turnover of some or all members of the board of directors.

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Community Update, Volume 8, 2017

Posted in Community Update

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cup_2017_v08In this Issue:

Arbitration Decisions – What are They and Where can I Find Them? helps you locate decisions from the Division of Florida Condominiums, Time
Shares and Mobile Homes.

But, I marked it “Paid in Full” will help you figure out what a restrictive endorsement on an assessment payment from an owner means to your community.

Proper Accounting Matters provides tips aimed at helping an Association preserve its rights to pursue delinquent members.

Florida HOA Boards Must Follow Correct Rule Procedures

Posted in Governing Documents, Rules & Regulations

Businesswoman with a businessman talking in a meetingQuestion: Our homeowners’ association documents say that the board can adopt rules, but don’t spell out how to do it. What procedures that must be followed? Can the board adopt a rule at a regular meeting and then enforce it the next day without providing any special notice to the members? (R.L. by e-mail)

Answer: There is very little in the Florida Homeowners’ Association Act that addresses the procedure by which rules are to be adopted. Particulars regulating rule adoption and notification will largely be addressed in the association’s governing documents.

I have seen provisions that require the board to provide notice of an effective date a certain number of days before a rule can be enforced. I have also seen provisions that state that the rules cannot be enforced until a copy of the newly adopted rules is provided to all members. I have even seen provisions that allow the board to adopt and enforce rules, but then provide the members with the right to veto those rules. None of this is addressed in the Act.

The Act does not say that the board is not automatically given the authority to adopt rules. That authority must flow from the governing documents. In some homeowners’ associations documents I have reviewed, (especially older documents), the board is only given authority to adopt rules regulating the common areas and procedural rules pertaining to the administration of the association. This would preclude the board from adopting rules governing the parcels (lots and homes).

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Fining Procedures Confound Condominium & Cooperative Boards in Florida

Posted in Association Documents, Governing Documents, Reader Q&A, Rules & Regulations, Suspensions, Fines & Remedies, Uncategorized

Side profile of business executives in an officeQuestion: Our association tried to fine an owner who violated our rules, but decided the process was too complicated. Can you provide a step-by-step outline of how fines are issued and collected? (M.G. by e-mail)

Answer: Fines can be imposed against condominium and cooperative unit owners, occupants, licensees and invitees. The law for homeowners’ associations authorizes fines against members, members’ tenants, guests and invitees.
Condominium and cooperative fines are capped at $100 per day, and capped at $1,000 for continuing violations. Homeowners’ association fines may not exceed $100 per violation unless otherwise provided in the governing documents. There is also a $1,000 aggregate cap, but again, the governing documents may permit a greater (or lesser) aggregate fine.

This is generally how it works:

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At Your Service: Condo Call-In with Donna DiMaggio Berger of Becker & Poliakoff

Posted in Elections, Fire Sprinklers, Governing Documents, Legislation, Voting, Water Sprinklers

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Donna Berger, Florida Condo LawyerFlorida Legislators have filed bills which could give Condo and Homeowner Association boards a double-take. If passed, a volunteer board member could face criminal penalties if Association records are stonewalled, or if there are fraudulent elections.

Might residents avoid trouble by choosing to stay off condo boards? Learn more on the Topical Currents “At Your Service” condo call-in edition.

Listen Now!

Florida HOA Board Must Follow Correct Rule Procedures

Posted in Association Documents, Governing Documents, Rules & Regulations

Businesspeople analyzing documentsQuestion: Our homeowners’ association documents say that the board can adopt rules, but don’t spell out how to do it. What procedures that must be followed? Can the board adopt a rule at a regular meeting and then enforce it the next day without providing any special notice to the members? (R.L. by e-mail)

Answer: There is very little in the Florida Homeowners’ Association Act that addresses the procedure by which rules are to be adopted. Particulars regulating rule adoption and notification will largely be addressed in the association’s governing documents.

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