Q: My condominium association still operates under our original documents from the early 1980s, which have been amended a couple of times. From what we can tell, the documents have never been updated from what the developer gave us. A number of owners want to modernize our documents. However, the declaration of condominium, which we understand is our most important document, says that amendments must be approved by seventy-five percent of all owners. We have trouble even getting the majority required for a quorum to hold our annual meeting. It seems impossible to get seventy-five percent of our owners to participate, let alone agree to anything. What options do we have? (A.O., via e-mail)
A: Unfortunately, your association will have to obtain seventy-five percent approval of all of the unit owners in order to approve amendments to the declaration of condominium. Section 718.110 of the Florida Condominium discusses amendments to a declaration of condominium. The statute provides that if the declaration fails to provide a method of amendment, the declaration may be amended as to most matters, by the affirmative vote of two-thirds of all unit owners. Here, you state that your declaration provides a method for amendment. That method requires seventy-five percent approval of all unit owners.
The statute also provides that for declarations recorded after April 1, 1992, amendment may not require approval of more than four-fifths of the voting interests. However, that does not apply in your particular situation since your condominium predates the statute and your amendment requirement is below the “ceiling” in the statute anyway.
It is not uncommon (in fact it is common) for original condominium documents to require super-majority approval of all voting interests. I am not sure why that is, it may be a practice that developers (and their lawyers) really don’t think about, or it may be a perceived advantage in the eyes of a developer to make the documents difficult to amend. I don’t think that confers any strategic benefits on developers, but that is how most of them do it.
In my opinion, with the exception of extreme issues (like termination of a condominium) all action requiring a vote of the owners should be based on those who actually vote (in person or by proxy) at a duly noticed meeting of the association. To achieve this result, the first step many associations take is to amend the amendatory provisions of the documents themselves.
Of course, you have the old “chicken and egg” problem, because you can’t get there unless (in your case) 75% of all owners agree to change how the documents can be changed. I have found that if the association tries to educate owners that “non-votes” should not be “no” votes, you can succeed. There needs to a pre-meeting process to get owners on board conceptually. Then you need to prepare the meeting materials and “get out the vote.” I have found that telephone committees are effective. If proper procedures are followed, meetings can also be adjourned for up to 90 days to garner more votes.
In addition to the declaration of condominium, the articles of incorporation and bylaws for the condominium association typically also contain their own amendatory provisions. If you want to make changes to those documents, you need to review what vote is required, and often that vote is lower than the vote to amend the declaration. You cannot use amendments to the articles of incorporation or bylaws to make changes that are inconsistent or which conflict with current language of the declaration. Further, some provisions of the declaration (such as the percentages by which common expenses are shared) cannot be changed except by unanimous approval, unless otherwise provided in the declaration as originally recorded (which is rarely the case).
Good luck!
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.
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