Question: Our condominium board is very unpopular with some and a recall effort was recently started to oust the president. Several owners came to my unit and told me all sorts of bad things about the president. They said he stole money and refused to let owners speak at board meetings. They asked me to sign a petition confirming that I supported the recall, which I did. I then attended the board meeting, where the recall petition was discussed, and it was revealed that what I was told about the president was not true. Several owners, including myself, tried to have our signed recall petitions thrown out because they were gotten under false pretenses but the association attorney said we couldn’t. The president was removed from the board. Did the association break the law by not allowing me to retract my recall petition? — T.W., Marco Island
Answer: No. The Florida Administrative Code, which is a supplement to Florida Statutes, specifically addresses this issue. It states that any rescission or revocation of a unit owner’s written recall agreement must be submitted in writing prior to the board being formally served with the recall petition. Since you tried to have your recall agreement rescinded at the board meeting, after the recall petition had already been served on the board previously, you no longer had the right to revoke or rescind your recall agreement.
There are very specific procedures which must be followed in order to successfully recall a director. Recall disputes are adjudicated through arbitration proceedings filed with the agency which oversees condominiums. The agency has consistently ruled that alleged misrepresentations made during the solicitation of recall votes are not the basis to overturn a recall. For one thing, directors can be recalled “without cause” so the truth of statements made during the political part of the process are not considered legally relevant.
Question: I have been serving on my condominium association board for four years. We have one year terms. An owner is now challenging my right to be on the board. Our bylaws state that no owner may serve more than three consecutive one year terms on the board without taking a year off. I recall attending a legal conference years ago and the lawyer presenting informed us that terms limits are not enforceable in Florida. Are term limits enforceable in Florida? —M.M., North Naples
Answer: This topic has is a subject of some debate within the legal community. Term limits contained in condominium bylaws are likely enforceable. However, the answer you were given at this prior legal seminar may have been correct at that time.
Historically, the Division of Condominiums, Timeshares and Mobile Homes, the state agency which regulates condominiums in Florida, had taken the position that term limits are invalid. There are prior court rulings on point. The basic philosophy behind most of the Division’s prior rulings emanates from the provision of the Florida Condominium statute which states that “any unit owner” may run for the board.
In 2010, the Division reversed its position on this issue (and reversed their prior prohibition on term limits) in a “Declaratory Statement.” The Division’s change in position was predicated on a subtle change in the wording of the Condominium Act. Some attorneys question the rationale and legal reasoning behind this decision. However, given the fact that most term limit disputes will first be heard by the Division, and unless or until a court holds otherwise, I believe there is a reasonable basis for accepting the Division’s current position, which is that term limitations within bylaws are enforceable.
I recommend you have the association attorney review this issue further. The precise wording in your association’s bylaws as well as when it was written, may be relevant to his or her analysis.
Question: My condominium association was set to have a big vote on some controversial amendments to the governing documents a few weeks ago. The proposed amendments include leasing changes that are onerous to investors and changes to the pet rules that seem totally unnecessary. I am strongly against these amendments, as are many other owners.
I attended the meeting and there was a quorum present in person or by proxy. Before the vote on the amendments was presented, a motion to adjourn the meeting to a later date was brought up and voted on, with most votes coming from the board secretary who held many proxies. The vote on the amendments are now being delayed a few weeks presumably so the board can drum up votes. Our bylaws say that a meeting can be adjourned if there is no quorum. Since we had a quorum, it seems like adjourning the meeting was a violation of our bylaws. Was this legal? — R.B., Naples
Answer: Probably. A similar issue was analyzed in an arbitration case from 1994. Although arbitration decisions (issued by the Florida Division of Condominiums, Timeshares and Mobile Homes) are not binding precedent, they do carry some weight. In that case, a unit owner challenged the association’s action of adjourning (sometimes called reconvening) the meeting even though a quorum was established. The arbitrator found that the bylaw provision did not limit the adjournment power of the association to only those situations where no quorum was present. In adopting an interpretation most reasonable and favorable to the association’s ability to efficiently operate the condominium, the arbitrator ruled that a lawfully convened meeting could be adjourned, even though a quorum had been established.
You should know that there are several procedural requirements that must be followed when adjourning a membership meeting to a later date and time. If all of these procedures are not properly followed, it could create a legal problem. Associations should consult with their attorney to ensure that the proper steps to lawfully adjourn a membership meeting to a later date and time are followed.
If your community association is located in or relatively near an area that is attractive to tourists, it is time for your board to start discussing the Airbnb phenomenon and what it might mean in the coming years. Sites like Airbnb, VRBO (Vacation Rentals by Owner), FlipKey, HomeAway, and Roomorama tout the fact that they are innovators in online vacation property rentals and market that their strengths lie in their community-based approaches. However, for volunteer boards and the managers who assist them, hotel-like lodging transactions in private residential communities can present security and privacy concerns, as well as constitute violations of a community’s governing documents.
Social historians may look back and see today’s Airbnb and Uber trends as defining moments in our connected, technological age. While private citizens may be celebrating their newfound ability to monetize assets they already own like their homes and vehicles, community association boards are scrambling to figure out whether or not their existing document restrictions on rentals are sufficient to stem the tide of owners jumping on the Airbnb bandwagon.
We are committed to sharing our legal knowledge to help others. We do so by offering State-approved educational resources in various forms, including more than two dozen courses, conferences, panel discussions, personal meetings, and webinars that you can conveniently attend from your office or home. With this many available options, it is easy for your board and manager to have the tools you need at your disposal. Please scroll below to see what is currently being offered in your area and click on a class for registration information for that particular class. We hope to see you soon!
Question: I am a member of the board of directors of my condominium association. One of our members has not completed a board member certification course and has not signed the form stating that they have read and will uphold the documents. My understanding is this is required by Florida law. What are the consequences of a board member not complying with the certification requirement? (C.O. by e-mail)
Answer: I have discussed this requirement in several previous posts. The statute requires that within 90 days of being elected or appointed to the board, the director shall certify in writing to the secretary of the association that they have read the association’s documents and will uphold such documents to the best of his or her ability. In lieu of this written certification, a board member may also complete an educational program approved by the Division of Condominiums, Timeshares, and Mobile Homes and submit a certification of having completed such curriculum to the secretary of the association. A board member may complete the educational curriculum up to one year before being appointed or elected to the board or within 90 days of such election or appointment. If a board member fails to comply with the certification requirement, or complete an educational program, within 90 days of his or her election or appointment to the board of directors, the statute provides that he or she is “suspended from service on the board until he or she complies.” Further, the board is authorized to temporarily fill the vacancy created by such suspension.
The statute also goes on to state that “failure to have such written certification or educational certificate on file does not affect the validity of any board action.”
Question: My condominium association has a 5 member board of directors. Recently, one of the directors resigned, creating a vacancy. Upon learning of the vacancy, I submitted a letter to the remaining board members requesting to be appointed to the board. I never received a response and recently learned that, at their most recent meeting, the remaining four directors appointed a person to fill the vacancy. Because I asked to be considered, should there have been an election? (B.O. by e-mail)
Answer: Vacancies on the board of directors caused by the resignation of a director is an area that frequently creates confusion. The election of the board members by the owners in condominium, cooperative, and homeowners associations is one of the basic rights of the owners, perhaps the most fundamental right. As such, when a vacancy occurs, many owners reasonably expect that they, the owners, should have a say in who fills the vacancy.
Summer is in full swing with record temperatures and lots of beach time greeting us every day. We cannot however forget that changes affecting many communities took effect July 1st.
In this issue:
We provide our annual recap of community association happenings at the legislative level. This includes:
- SB 184 concerning rentals to Service Members
- SB 130 concerning criminal charges for discharging of firearms
- HB 971 concerning Community Development Districts
- SB 190 concerning conservation easements
You will also find insight on the Fire Sprinkler Retrofit requirements and the deadline for opting out of the retrofit. Although December 31, 2016 is months away, waiting until the last minute could backfire, given all that must be done to properly opt-out. If your community is not opting out of the retrofit then it is just as important that the process be commenced to ensure compliance with the final retrofit deadlines (i.e., end of 2019).
As always, our Did You Know? section provides nuggets of information. This issue, we provide a link to CALL’s Legislative Guide, a free eBook that provides more detail on the legislative developments of the past year. Differences abound between the Guide and the Newsletter. The Guide is more detailed and includes the ever important Action Steps to be considered by Associations seeking to stay on top of changes in the laws which affect community living.
Several weeks ago, our first BPBALLOT online vote was finalized up in Santa Rosa Beach and it was a grand SUCCESS!
Since our first vote we have several more communities who have already purchased a BPBALLOT license and have their online votes underway.
If your community has historically struggled to achieve a quorum on important membership votes and, as a result, has never been able to amend the governing documents or struggles to elect a board each year, perhaps you should consider the usefulness of taking an online vote. Click here to learn more about BPBALLOT.
Question: Our condominium is made up of a number of three-story buildings. Every year we have a number of water leaks from an upstairs unit to one or more downstairs units. While the insurance carrier for the owner of the damaged unit usually pays for most of the repairs, the association is always told it is responsible for the drywall. In most of these situations, the damage to the drywall is less than the association’s deductible. The association then has to pay the entire amount associated with the repair or replacement of the drywall, even though it was not responsible for the damage. I am the treasurer of our board, and I do not understand how or why this is the association’s responsibility, rather than the owner who caused the damage. (T.L by e-mail)
Answer: This is one of the most common issues I face in representing condominium associations. The law has changed on this topic more times than I can count in the 30 years I have been representing associations. On behalf of the Florida Bar, I have taught lawyers continuing legal education on the subject, and even I get confused sometimes.
At its most basic level, the law distinguishes between repairs following an “insurable event” (sometimes called a “casualty”) and preventative maintenance or work that is necessary due to routine wear and tear.
The current state of the law traces its roots back to amendments to the Florida Condominium Act that were adopted in 2008. I have discussed these changes previously in this column, including my August 31, 2008 column entitled “Condo Owners Should Heed ‘Plaza East’” as well as my September 19, 2010 column entitled “‘Plaza East’ Now Florida Law.” Past columns are available on-line.