Question: I am the secretary of my homeowners’ association. In reading the bylaws, I see that I am responsible for making sure that the association maintains all official records. However, our bylaws do not specify what constitutes an “official record.” We just had our annual elections. We now have ballots, and a large number of torn open envelopes. Are these all official records? And, if so, how long do I have to keep them for? J.S. (via e-mail)
Answer: That is a good question. The Florida Condominium Act (Chapter 718 of the Florida Statutes) specifically lists ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners as “official records” which must be maintained for one year from the date of the election/meeting (generally speaking, most records must be kept for seven years).
The Florida Homeowners’ Association Act (Chapter 720 of the Florida Statutes), however, does not mention voting materials used at members’ meetings as part of “official records.” However, the HOA Act does include a “catch all” provision that requires homeowners’ associations to maintain all “written records” not specifically listed in the statute. It is my opinion that ballots and all of the envelopes fall within this definition, and must be kept as official records. Of course, I am assuming your HOA is conducting secret ballot (rather than proxy-based) elections under proper authority in your bylaws, which is one of the most common mistakes I see in homeowners’ association operations.
The HOA Act generally provides that official records must be maintained within the state for seven years unless a different timeframe is provided (for example, bids only need to be kept for one year). Therefore, as odd as it may seem, all of these materials are supposed to be kept for seven years. If there is a management company, their contract usually requires them to oversee this.
Over the past few weeks, the Miami Herald and Univision have teamed up to investigate allegations of fraudulent condominium elections, primarily in Miami-Dade County. In fact, Miami-Dade County by far has the highest number of complaints of any county in Florida for voter fraud, according to the Department of Business and Professional Regulation, accounting for 566 of the 1908 complaints filed. One condominium in Miami was found to have had a record turnout where 115% of the owners participated in the election!
Not coincidentally, the State Legislature saw it appropriate last year to pass laws to protect against voter fraud and to facilitate voting in condominiums by enacting online voting provisions.
Electronic voting for Condominiums, Cooperatives and Homeowners’ Associations is now allowed, including for the most controversial of all votes – elections. Associations may conduct elections and other unit owner votes through an internet-based online voting system if the unit owner consents, in writing, to online voting and if association adheres to certain requirements. These include providing a method to authenticate the unit owner’s identity to the online voting system, a method to transmit an electronic ballot to the on- line voting system that ensures the secrecy and integrity of each ballot and a method to confirm at least 14 days before the voting deadline, that the unit owner’s electronic device can successfully communicate with the online voting system.
There are two (2) surveys that are currently open that we encourage you to take.
CondomundoUSA Association Voting and Fraud Survey
First is the CondomundoUSA Association Voting and Fraud Survey. CondomundoUSA is Becker & Poliakoff’s Spanish language blog.
CondoMundoUSA has created a survey intended to help identify concerns of community association members related to voting. The results will help create educational materials and spearhead potential changes in statutory provisions governing voting in communities. Or perhaps the survey results will show that the current statutory election procedures are not the problem, but rather the lack of education and implementation.
The Survey is available in English and Spanish and should only take 5 minutes. Please click on your preferred language. The survey will be available through July 8, 2016.
En Español: https://www.surveymonkey.com/r/condomundousa1
In English: https://www.surveymonkey.com/r/condomundousa2
CALL’s 2016 Florida Community Living Survey
We want to know what’s on the mind of community association residents in Florida.
Based on feedback we received during this year’s legislative session from our CALL members, we have created “The 2016 Florida Community Living Survey.” The Survey will be available through July 8th, 2016. If you are interested in sharing your views, please click on the following link: https://www.surveymonkey.com/r/callbp
Your responses to questions about community associations will help us gain a better understanding of your needs and concerns.
CALL will publish the results on its site www.callbp.com and share them with representatives of business, government and the press, thus enabling you to have a stronger voice in issues that affect your home, quality of life and real estate investment.
The survey is completely confidential and only aggregated results will be reported. By way of thanks, five respondents who complete the survey and provide contact information will be selected at random to receive $50.00 American Express gift certificate.
CALL’s 2016 Legislative and Community Association Resource Guide will be available very soon. Even though the legislative session ended without any significant piece of community association legislation passing, it is important to look back on the 2016 session and the bills that were filed, because it is likely that these issues will continue to be debated in the future. There is also legislation that we will be reviewing that passed during previous sessions, but that are now becoming more important, including electronic voting and fire sprinkler retrofitting opt-out.
This year’s Guide will feature the following:
- Update on Electronic Voting and BPBALLOT
- Update on Fire Sprinkler Retrofitting and Opt Out Vote
- 2016 Bills of Interest that Passed and Did Not Pass
- Links to the legislative websites where you can access the final “Enrolled” version of the bills
- Case Summaries
- “Practical Pointers” for associations to help implement the 2016 legislative changes and get ahead of potential changes in 2017
- A list of recommended “Action Items” for associations after the 2016 legislative session.
If you would like to pre-register to receive CALL’s 2016 Legislative and Community Association Resource Guide, please register online at http://callbp.com/event_registration.php?event_id=578
A PDF copy will be emailed to you when the Guide becomes available.
Question: I am a unit owner in a high-rise condominium. At a recent board meeting which I attended, the issue of insurance was discussed. The board stated unit owners are not required to carry insurance. Is that right? I thought the condominium law mandated that all unit owners must carry insurance for their units? T.T. (via e-mail)
Answer: Good question, the law is a bit confusing. Generally speaking, the association insures the buildings, including many parts of the unit such as drywall. The current version of the Florida Condominium Act (Chapter 718 of the Florida Statutes) does not specifically mandate that unit owners must carry personal insurance (commonly known as “HO-6” insurance). The current version of the statute does, however, define those areas of a unit which the unit owners are “responsible” to insure which includes floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit While unit owners are “responsible” to insure these defined areas within their units, the statute does not mandate it.
You may be thinking of the 2008 change to the law which did, in fact, implement mandatory HO-6 insurance policies for unit owners in condominiums. The 2008 change in the law further granted an association the authority to “force-place” and purchase and charge a unit owner who failed to confirm that they did carry HO-6 insurance. This law was repealed in 2010.
You should also check your condominium documents, as there may be a requirement which mandates that unit owners carry HO-6 insurance. In my opinion, such a provision, while not common, would likely be legally enforceable.
Question: The board of directors of our homeowners’ association is totally arbitrary in their application of the architectural rules in our community. For example, they approve applications for some owners, but when another owner applies for the exact same alteration, they are denied. My question is whether the board must be fair and equitable in their application of the architectural guidelines? R.H. (via e-mail)
Answer: Of course. In some communities, the recorded covenants authorize the association to adopt written guidelines that an owner must follow to make alterations to his home or lot. In other cases, an architectural review committee or the board’s review authority is derived from general language in the declaration that requires alterations to be compliant with the “general character” of the neighborhood, or done so to “maintain harmony of appearance” in the community.
The scope of architectural review powers are at least in some measure governed by Section 720.3035 of the Florida Homeowners’ Association Act. This law provides that the authority of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated in or “reasonably inferred” from the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.
This statute, which was enacted in 2007 (and is of questionable applicability to pre-existing HOA’s), limits the ability of an association to regulate architectural matters to those contained within the recorded covenants, written guidelines or “reasonable inferences” therefrom.
There is still case law authority that permits the use of “de facto” building schemes as guidance. For example, if every home in a community was built with a red clay tile roof, every homeowner would be on reasonable notice that installing an “Old Florida” metal roof would be inconsistent with a typical declaration requirement for “harmony of appearance.”
Florida’s courts are emphatic that restrictions on the free use of property are disfavored in the law, and strictly construed. General and subjective standards such as “harmony of appearance” can sometimes present legal problems for associations. My typical advice is that to the extent a homeowners’ association wishes to regulate architectural/building/landscape issues, specific written guidelines save a lot of headaches.
Question: I would like to know about the process for recalling the board of directors. What percent vote is needed? R.J (via e-mail)
Answer: A majority of the association’s total voting interests must vote to approve the recall for it to be effective. Generally, each unit or parcel has one voting interest.
If the declaration, articles of incorporation, or bylaws specifically provide, the members may recall and remove a member or members of the board of directors by a vote taken at a meeting. Such motions may be called by ten percent of the voting interests. The meeting recall process is very technical in nature and usually unsuccessful. Use of the “written agreement” procedure, where no meeting is ever called, is much more straightforward.
The procedure for condominium recalls is set forth on the Department of Business and Professional Regulations’ website, including forms to use. Since homeowners’ associations are not subject to state regulation, there is no similar on-line resource for HOA’s.
Question: I’m new to the board of my condominium association. I was just copied on a lengthy opinion letter from the association attorney. There are several references to various court decisions. There are also references to arbitration decisions. What is an arbitration decision? A.Z. (via e-mail)
Answer: Since 1992, all condominium “disputes” (as that term is defined in the law) have been initially adjudicated through the State’s mandatory, non-binding arbitration program. The purpose of the statutorily-mandated arbitration procedure is to provide a more informal and cost-effective forum for resolution of routine condominium disputes (elections, records inspection, use restrictions, and material alterations to name a few). About 500 cases per year are adjudicated through that program. The result is a substantial number of arbitration decisions being rendered by the Division of Florida Condominiums, Time Shares and Mobile Homes. Arbitration decisions are not afforded the weight of “law” as are appellate court decisions. However, they are generally considered relevant legal authority and will be specifically followed in other arbitration proceedings involving the same point of law.
Question: Our condominium association has a number of owners who are delinquent. We have reviewed various collection options, including liens and foreclosure. I understand that there are other actions the association can take including taking away use rights in the condominium property. How can we take away an owner’s right to use the property? If we can do so, how do you enforce such a suspension? A.O. (via e-mail)
Answer: Both the Florida Condominium Act and the Florida Homeowners’ Association Act permit an association to suspend the unit or parcel owner from using the common elements, common facilities or any other association property if the owner is more than 90 days delinquent in the payment of any monetary obligation to the association. The suspension also applies to the owner’s tenants, guests, and invitees. However, the association is not permitted to suspend the use rights related to any limited common elements intended to be used only by that unit or parcel, the common property needed to access the unit such as parking spaces or elevators, and cannot suspend utility services provided to the unit or parcel.
Question: I belong to a voluntary property owners’ association which has raised money for various projects within our community. However, I did not renew my membership this year by paying the annual dues because I was dissatisfied with the association’s prior accounting of its funds. Is there any way to force a voluntary association to give its members an accounting of its funds? J.H. (via e-mail)
Answer: Possibly. A voluntary association, assuming it is incorporated, would only be subject to the provisions of Chapter 617 of the Florida Statutes, the Florida Corporation Not For Profit Act. Chapter 617 provides that if the articles of incorporation limit membership in the corporation to property owners within a specific geographic area, every such property owner must be permitted to join the association so long as they abide by the terms and condition of membership. It appears that the terms and condition of membership in your association is paying the annual dues. To the extent that failing to pay your annual dues resigned to your membership, you may currently have no right to inspect the finances of the corporation.
Members of an incorporated voluntary property owners’ association have the right to inspect certain records of the association pursuant to Section 617.1602 of the Florida Statutes, including the accounting records for the corporation. Further, pursuant to Section 617.1605 of that law, the corporation, upon a members’ written demand, must furnish a copy of its most recent annual financial statement.