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Vote Usually Not Required for Board-Made Rule

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Q: Our condominium association board recently announced a new rule involving the hours our tennis courts are open. The owners were not asked to participate in discussing the new hours or vote on the rule. Was the board correct in making this decision? (V.G. via e-mail)

A: Probably. The board of directors generally has the authority to enact reasonable rules and regulations regarding the common elements and recreational facilities, unless the condominium documents provide otherwise.

The Florida Condominium Act, provides that reasonable rules regarding the use of common elements, common areas, and recreational facilities may be adopted by the entities that are responsible for their operation. However, the law states that such rules may not unreasonably restrict a unit owner’s right to peacefully assemble or invite public officers or candidates for public office to appear and speak in such places.

Your condominium documents also likely address the scope of the board’s rulemaking authority, including any limitations on the board’s right to adopt rules. For instance, some documents provide that the board can only adopt rules with respect to the common elements, and cannot adopt rules regulating the units. Additionally, some condominium documents provide that rules must be approved by a vote of the unit owners.

A new rule setting tennis court hours is likely within the scope of the board’s rule making authority, but it will depend on the language of your association’s condominium documents. If the board has the right to adopt the rule, unit owners do not have the legal right to comment other than during the discussion at board meetings where the rule was adopted. The rule would not have to be approved by a unit owner vote unless specifically required by the condominium documents. To be enforceable, the courts have also ruled that any rule made by the board governing the use of the common elements must be “reasonable.”

Q: What are “floor nominations?” I have heard the term come up in discussion about our homeowners’ association’s upcoming election, but am not familiar with this procedure. (B.K., via e-mail)

A: Floor nominations refer to a procedure when members are permitted to nominate themselves as candidates for the board of directors “from the floor” at the meeting where the election is being held.

The Florida Homeowners’ Association Act permits floor nominations in certain circumstances. Under the law, all members are eligible to serve on the board of directors, except those that are delinquent in the payment of any monetary obligations to the association, and those that have been convicted of a felony in Florida without having their civil rights restored for at least five years.

Members may nominate themselves as candidates for election to the board at the meeting where the election will be held (“from the floor”). However, if the association’s governing documents allow anyone wishing to be nominated to do so in advance of the meeting, the association is not required to allow floor nominations at the meeting.

Although floor nominations may be permitted in some homeowners’ association’s meetings, they are not permitted in condominiums. The Florida Condominium Act requires all candidates for the board of directors to submit written notice of their intent to be a candidate forty days prior to the election.

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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