Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

You may wonder why the distinction is important. There are different laws for each type of association. The rights and responsibilities of owners are different in each type of community and procedural operations are likewise different. Here are a few examples:
 

Election Procedures:

Proxy wars in condominiums led to substantial revisions of the Condominium Act - one of those revisions eliminated use of proxies for elections and created a balloting procedure requiring advance nominations (no nominations from the floor) and a 2 envelope system for casting election ballots. Once an election ballot is received by a condominium association, it cannot be revoked. Most HOAs use general proxies for most matters, including the election of directors. In an HOA nominations are allowed from the floor. The proxy holder would then consider the nominees and vote in the manner they believe is appropriate without consulting the voter (proxy giver). Proxies can be revoked and a later dated proxy will control, leading some HOA owners to solicit proxies multiple times if they want to control the outcome of an election.

Quorum Requirements:

A quorum is not necessary to hold a condo election. The Condominium Act only requires participation (ballots) by 20% of the members in order to hold a valid election. This provision ensures that the members (owners) have a say in association leadership even if the majority of the members don't care and don't vote. HOA owners do not enjoy that benefit as there must be a quorum to hold an election. Many owners do not participate in association affairs. They ignore mailings, do not attend meetings and do not send back proxies. That number rises when homes are abandoned, in some stage of foreclosure, bank owned and the like. The lack of participation can prevent an election from being held and the existing board members stay in office which leads to owner complaints from time to time.
 

Dispute Resolution:

The State’s mandatory, non-binding arbitration program has been in place since 1992. The Court system became overburdened with condominium cases and litigation is highly procedural, creating a substantial disadvantage to pro-se defendants (homeowners without legal counsel). The purpose of the statutorily-mandated arbitration procedure is to provide a more informal and cost-effective forum for resolution of condominium disputes. HOAs don't have access to the arbitration system with 2 exceptions: election and recall issues. Thus, a homeowner frustrated because the board ignores all requests for records has to file a lawsuit after he or she sends a statutory offer to participate in pre-suit mediation. That HOA owner does not have an enforcement agency to call to get help obtaining the records and doesn't have the option of filing a user-friendly petition for arbitration. 
 

There are many other differences between condominium and homeowners' association operations and some associations turn to the Division of Florida Condominiums, Timeshares and Mobile Homes for guidance.  We will discuss one recent declaratory statement that addressed leasing office space in a future post.

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Board members can catch a lot of heat if the community pool closes, especially in this time of the year.  We first explained the Virginia Graeme Baker Pool and Spa Safety Act in Many Florida Condos & HOAs Must Comply with Pool & Spa Safety Act and then re-addressed issues concerning community pools in the following posts:

Community Pools are Subject to Health Department Regulation

Pool & Spa Safety Requirements Revisited

Many associations have installed the compliant drain covers, as well as addressed the direct suction issue. The federal requirements apply to virtually any pool operated by a community association, and are independent of state permitting regulations.

Well ... there is a voluntary recall of several types of consumer pool and spa drain covers.  The U.S. Consumer Product Safety Commission (CPSC) announced the availability of a Drain Cover Recall Hotline, at (866) 478-3521, which is open 24 hours a day, seven days a week.
 

Check with your pool contractor and see whether your pool installed drain covers by any of the following manufacturers:

• A & A
   
• AquaStar
   
• Color Match
   
• Custom Molded Products
   
• Hayward
   
• Pentair
   
• Rising Dragon

I included links to the relevant websites (click on the manufacturer name above).

Community leaders should also check whether the condominium or cooperative association needs to renew its exemption from regulations imposed on public pools.   You don't want the health department to close your pool and you certainly don't want defective safety products in your community's pool. 
 

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While the recall process is widely known, many community leaders are unaware of a process authorized by the Division of Florida Condominiums, Time Shares and Mobile Homes referred to as a "reverse recall".

A recall attempt may fail if the Board of Directors does not handle the recall effectively.  In many instances there is a member of the Board that is not well liked or otherwise is adversarial to the remaining members. While any individual may start a recall effort, the Board cannot legally “bend the rules” and certify a recall that should not be certified due to lack of proper votes or the use of an improper form of written agreement. Moreover, failing to call or hold a meeting does not, under all circumstances, automatically entitle the unit owners to certification of the recall attempt.

What does a recalled board member do when the Board certifies a recall that he or she knows should not have been certified? What does a recalled Board member do when it is discovered that he or she was recalled without being given the opportunity to address the board at a meeting called for the purpose of determining whether or not to certify the attempt? The recalled Board member may file a Petition for Arbitration with the Division of Florida Land Sales, Condominiums and Mobile Homes. Those Petitions are known as “reverse recalls”.

As described in Ringler v. Tower Forty One Association, Inc., Arb. Case No. 2005-04-1867, a reverse recall is a proceeding in which “the board member whose recall was certified initiates the proceeding, joined by any other unit owners who wish to be included as petitioners, arguing that the recall effort was certified in error and naming the association as a party”. The party filing for arbitration may challenge the board’s actions or in actions relating to the recall process and may challenge the recall procedure itself, such as the form of written agreement or vote at a meeting. In Ringler, the board received the written agreements for recall and failed to call a meeting. Mr. Ringler was notified that the recall was effective before he even knew that the board was served. The property manager accepted service of the written agreements and delivered them to another board member. That board member purportedly failed to notify anyone else (although that allegation was disputed).

Since service on the Association’s manager is effective service, the recall against Mr. Ringler was ultimately certified, but in Scariati v. The Villages of Emerald Lakes One Condominium Association, Inc., Arb. Case No. 2005-02-1485, the arbitrator reversed the recall as it was discovered that there weren’t enough written agreements signed by owners to effectuate a valid recall. In Scariati, the petitioner alleged she was not permitted to examine the recall written agreements before or even at the board meeting to determine whether or not to certify the effort. Once she had that opportunity, she discovered the improprieties. The recall was not certified, even though the board voted to certify, as a result of the board’s improper behavior and the fact that the recall was void ab initio.

There is a substantial difference between recall arbitrations and “reverse” recall arbitrations. There is no mechanism for recovery of prevailing party attorneys’ fees in the arbitration of a recall. However, since a “reverse” recall is a Petition filed by a unit owner (or owners), attorney’s fees are awardable to the prevailing party. Thus, it is important not to ignore procedural requirements in connection with a recall attempt as machinations on the part of the board may expose the Association to liability for the opposing side’s fees and costs.
 

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