Question: Our condominium association is having a vote at a special meeting to authorize major improvements to our property, which must be approved by 67% of all voters. We have a hard time getting people to vote. We understand that we can hold the process open for 90 days to get out the vote. How does that work? (A.L. by e-mail)
Answer: You should discuss with your association attorney in advance of the meeting so you can be prepared how to handle the “adjournment” process under your particular governing documents.
Many bylaws only recognize the right to adjourn when a quorum is not present. I am aware of at least one agency decision (which is technically not binding law) where a unit owner challenged the association’s action of adjourning the meeting even though a quorum was present. The arbitrator ruled that the bylaw provision in question, which only allowed for adjournment where no quorum was present, did not limit the right to adjourn in other circumstances. In considering the interpretation most reasonable to the association’s ability to efficiently operate the condominium, the arbitrator ruled that a lawfully convened meeting could be adjourned in circumstances other than lack of a quorum. There is also an appeals court case in the homeowners’ association context which appears to adopt a liberal view of adjournment procedures.
If a quorum is present at the meeting, either in person or by proxy, the meeting can be called to order, but you should “adjourn” it before taking the vote on the project, if not enough units are represented to take the required vote. The procedure I recommend is generally as follows:
- Call the meeting to order.
- Explain to the members present that the association has not obtained sufficient voter input to properly address the issue at hand and request that the meeting be adjourned to permit additional members to submit proxies.
- A motion should be made and seconded as follows:
I move that this meeting be adjourned until [date] at [time] at [place].
The motion must contain an exact date, time and place for the reconvened meeting. I would recommend adjourning for three or four weeks, if you think that will be enough time.
- The motion should be voted upon by the members. The proxyholder for the board is entitled to vote the proxies he or she holds in favor of the motion (as can any other proxyholders), as long as the signer of the proxy has given general powers to the board.
- Those members who have come to vote at the meeting in person should be given a proxy, asked to mark their vote, and leave the signed proxy with the association. If they wish to come to the reconvened meeting later, they can revoke their proxy and vote in person.
- The meeting should be adjourned.
- The Association should contact those owners who have not voted and encourage their participation, whether they are for or against the project.
- The vote is taken at the reconvened meeting. The additional proxies obtained can be added to the count, as well as the votes of those who vote in person at the reconvened meeting.
Unless otherwise addressed in the bylaws, notice generally does not need to be given for the reconvened meeting, but may be required for new owners. Also if title changes, proxies should be obtained from the new owner.
The Florida Condominium Act states that a proxy is not valid longer than 90 days after the date of the first meeting for which it was given, so the process must be completed within 90 days. Some bylaws contain specific restrictions on adjournments, which could materially alter the general processes and deadlines noted above.
There are two weeks left in the 2017 Legislative Session—assuming it ends on time. Of the many different community association bills that were filed at the beginning of session, the following four (4) sets of bills are the ones that appear to be most likely to pass.
Condominium Bills by Sen. Garcia and Rep. Diaz (SB 1682 and HB 1237) — I have written extensively about these bills in previous CALL Alerts. HB 1237 has been significantly amended as follows:
- Criminal penalties will be limited to forging election ballots and voting certificates, theft and embezzlement of association funds, and destroying official records in furtherance of a crime;
- Mandatory websites for posting official records for associations that operate more than 150 units, to be effective on July 1, 2018;
- Mandatory term limits for board members, regardless of the size of the association, except if there are no eligible candidates.
- The Senate bill will be heard in the Rules Committee on Tuesday, April 25, at 2:00 p.m. The House bill has been approved by all Committees and now heads to the floor of the House for consideration by the full House of Representatives.
Estoppel Bills by Sen. Passidomo and Rep. Donalds (SB 398 and HB 483) — The Senate bill has been approved by all committees of reference and was approved by the Senate on 4/6/17 by a vote of 36-1. The House bill has been approved by all committees, and is awaiting consideration by the full House. The bills:
- Cap the amount that can be charged for estoppel certificates ($250), with additional amounts due if the unit is delinquent and/or if the estoppel certificate is requested on an expedite basis.
- Allow associations to require that the estoppel certificate fee be paid when the certificate is prepared (i.e., the “pay at close” provision that was in earlier versions of the bill has been removed).
- Require that the estoppel certificate include some additional information about the unit including “open violations of the rules and regulations”.
Fire Sprinkler/ELSS/Bulk Buyer/HOA Budgets and Reserves Bills by Sen. Passidomo and Rep. Moraitis (SB 744 and HB 653) — The Senate bill has been approved by two committees and must still be heard by Rules. The House bill has been approved by three committees, and will be heard in its final committee of reference (Commerce) on Monday, 4/24/17. The bills:
- Allow high rise buildings to opt out of an engineered life safety system (ELSS). The required vote is two-thirds of all voting interests;
- Clarify that non-high rise buildings (under 75 feet) are not required to retrofit with sprinklers or an ELSS;
- Require condominium and cooperative associations that operate a building of three stories or more that has not installed a sprinkler system in the common areas of the building to mark the building with a sign or symbol approved by the State Fire Marshal in a manner sufficient to warn persons conducting fire control and other emergency operations of the lack of a sprinkler system in the common areas.
- Make permanent the “Distressed Condominium Relief Act” (i.e., the “bulk buyer” law) that is supposed sunset on July 1, 2018 (this is not in the Senate bill);
- Revise the provisions regarding termination of condominiums.
The original bills included new budget and reserves provisions for HOAs, but those have been removed from the bills.
Marketable Record Title Act (MRTA) Bills by Sen. Passidomo and Rep. Edwards (SB 1046 and HB 735) — The Senate bill has been approved by two committees, and must still be approved by Rules. The House bill has been approved by two committees and is will be considered by Judiciary on 4/24/17. The bills:
- Do not completely exempt HOAs from MRTA, but revise the procedures for preserving covenants and restrictions under MRTA;
- Allow non-residential covenants and restrictions to be preserved under MRTA; and
- Include a procedure for non-mandatory HOA communities to revitalize expired covenants and restrictions.
Very truly yours,
Yeline Goin, Executive Director
Community Association Leadership Lobby (CALL)
Question: 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.
Question: 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).”
Becker & 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, firstname.lastname@example.org, (305) 403-2080, Ext. 128.
Question: 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.
Question: 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.
In 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.
Question: 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).
Question: 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: