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“Non-Vote” Can Be A “No Vote”

Q: The declaration of covenants for our homeowners’ association says that it can be amended by a “two-thirds vote.” There are 120 lots in our community. Most people believe that we need 80 votes (two-thirds of all lots) to amend this document. There is a “parliamentarian” on our board. He argues that under Robert’s Rules of Order, we only need to get a quorum of the lot owners to vote on these amendments (our bylaws require a majority of the lot owners, or 61, for a quorum). Then, if two-thirds of those who vote approve the amendment, he claims it passes. What do you say? (R.M. via e-mail)

A: This provision highlights the necessity of having an attorney qualified in community association law assist with updating your governing documents. The language you cite can be interpreted differently by different people. There should be no room for interpretation of the required vote to amend.

In most HOA governing documents, each lot or home is assigned one “voting interest.” I recommend that clauses in the documents which refer to voting use the term “voting interests.” If it is the intent of an association that a particular vote be predicated upon the entire membership, an unambiguous phrase would be “two-thirds of the entire voting interests.” In your case, since there are 120 voting interests, there would be no room for doubt that 80 votes are required.

Conversely, if it is the intent that a particular vote be calculated based upon those who vote, the phrase “two-thirds of the voting interests, present (in person or by proxy) and voting at a duly noticed meeting of the association at which a quorum is established” is likewise unambiguous. I would also point out that Section 720.306(1)(a) of the Florida Homeowners’ Association Act states that a quorum is thirty percent of the voting interests, unless a lower number is specified in the bylaws. This provision was added to the statute in 1995. It remains an open question whether a higher quorum requirement in a pre-1995 homeowners’ association controls.

Although I believe that certain “extraordinary” votes (for example, termination of the covenants) should be based upon the entire voting interests, it is my opinion that the better practice for other, more routine votes, is to count the votes of only those who choose to participate. Otherwise, a “non-vote” is essentially a “no vote.”

As to the proper interpretation of your present amendatory threshold, I agree with the apparent majority view that 80 votes would be required to amend your declaration, as it is currently written.

Q. I recently attended a meeting of my condominium association’s board of directors. During the meeting there was discussion on the board adopting specifications for hurricane shutters. The board is contemplating only allowing a certain type of shutter to be installed. However there are other shutter styles, which are cheaper, which could also be installed. Can the board of directors require owners to install only the more expensive shutter style?

A. In my opinion, yes. Section 718.113(5) of the Florida Condominium Act states that each board of administration of a residential condominium shall adopt hurricane shutter specifications for the condominium buildings. The shutter specifications adopted by the board shall include “color, style and other factors deemed relevant by the board.” Accordingly, the board is specifically empowered to dictate the “style” of shutters that must be used. The only limitation is that such specifications must comply with the applicable building code.
Therefore, even if there are cheaper code-compliant shutter styles available, an owner would have to comply with the shutter specifications adopted by the board and install shutters which comply with the board’s specifications as to style.

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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