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Rental Amendments Require Proper Procedure

Q:        My association recently sent out the annual meeting notice materials. There is a proxy question which reads: “Should the minimum rental term be increased to 90 days?” There was no other documents or discussion regarding the amendment included in the meeting materials. Is this legal? (J.P. via e-mail)

A:        Probably not, although this is a somewhat complicated legal issue.

First, if your association is governed by the Florida Condominium Act, proposed amendments to the declaration of condominium (which is usually where rental terms are set) must be presented in a “black-lined” fashion. This means that proposed additions to the declaration are underlined, and proposed deletions are stricken through. There is an exception when the changes are so substantial that the black-lining method would be too confusing.

While there is no requirement in the Act that the text of a proposed amendment be included with the notice of meeting where it will be voted on, many declarations require this to be done. Also, it is universal practice to do so, in order for the owners to know exactly what they are voting on before the day of the meeting.

Further, condominiums are governed by a provision in the statute which states that owners who do not vote to approve additional restrictions on the frequency or duration of leases (by either voting against the measure or not voting at all) are grandfathered from the amendment, though it will be binding on their successors in title.

If you are part of a homeowners’ association, the law is a bit different. There is no legal requirement in the Florida Homeowners’ Association Act for presentation of amendments in black-lined format. Actually, this statute does not really address amendment procedures at all. Most governing documents will contain some guidance on amendment procedure. Again, it is nearly universal practice to include a black-lined text of the amendments (or amendments presented in the “substantial wording” format) so that owners know what they are being asked to vote on. At the very least, the proxy should describe what provision of the governing documents are being amended.

The rental amendment grandfathering law for condominiums does not apply to homeowners’ associations. However, there is an annual effort by vacation/resort interests to apply the same regulations to Homeowners’ Associations. I am told there is a recently filed amendment in the pending legislative session to this effect.

Q:        I read your article “Fining Procedures Confound Board.” I am still confounded. Can the board impose a fine if the fining committee sides with the violator? (M.D. via e-mail)

A:        This column was published on March 26, 2017. All of my previous columns are available on my law firm’s blog at http://www.floridacondohoalawblog.com/about. Please feel free to subscribe.

The answer to your question is no. If the independent committee (which you refer to as the fining committee, which is often the name used) “rejects” a proposed fine or suspension, it cannot be imposed. That is the end of the matter, although this would not preclude enforcement of a violation through court or arbitration if it were of an ongoing nature.

Q:        My window was damaged by Hurricane Irma. It is covered by the association’s insurance policy, but the total damage to our building is well below the deductible. Who pays for my new window? (M.G. via e-mail)

A:        The association. The Florida Condominium Act provides that when an association insures an element of a building, it is required to fix the element after an “insurable event” and assess all unit owners for any shortfalls not covered by insurance, including those because of a deductible. This is the so-called Plaza East Rule of the statute, which was incorporated into the law in 2008.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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