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President Not A Tie-Breaker

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Q: Recently, a member of our board of directors resigned, leaving my condominium association with six board members. The board met in a closed meeting to consider appointing someone to fill this vacancy The board voted three times to appoint a person to fill the vacancy and each time the vote was tied at three to three. On the third vote, the president of the association stated that he had the right to break the tie and voted again to appoint “his” person to the board. Was this appropriate? (T.U., via e-mail)

A: I doubt it. Both the Florida Condominium Act and the Florida Homeowners’ Association Act provide that when a vacancy on the board of directors occurs before the expiration of the term, the vacancy may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum of the board.

There is no provision in the statutes authorizing the president of the association to “break ties.” Assuming he or she is a director, he or she gets one vote just like all the other directors. This is a common misconception because various parliamentary manuals, such as Robert’s Rules of Order, give the chair the authority to break ties. Certain other bodies, such as the United States Senate, also follow this procedure.

The president generally has the authority to chair meetings of the association, and other powers as the chief executive officer of the corporation, but does not get an extra vote on the board. Therefore, it would appear that your association has not effectively appointed a replacement director.

You also stated that the board met in closed session. Closed meetings may only be held with the association’s attorney to receive attorney-client privileged advice concerning proposed or pending litigation, or for board meetings dealing with personnel matters. Voting to fill a board vacancy does not, at least in most circumstances I can think of, fit within either of these exceptions.

Q: According to our governing documents, the master association is responsible for the community’s drainage system necessary to maintain the system. Last year, the storm drain between my home and my neighbor’s began to back up. We discovered that part of the drain has a massive root intrusion. We reported this issue to our management company and they refuse to make any repairs. What recourse, if any, do I have at this juncture? (K.G., via e-mail)

A: There is no easy answer to a question like this. What you consider a “drain” may simply be a contour of land, or perhaps a “swale,” where water flows. The answer would require review of the master association and neighborhood governing documents, a review of the plats, and likely review of the permit with the applicable water management district.

Unless the governing documents or the permits provide otherwise, maintenance of “yards” (even though water is designed to flow across portions thereof) is usually the responsibility of the lot owner. If the tree whose roots are causing the problem is on one the associations’ property, or your neighbor’s lot, you would generally have the right to cut the roots at your property line, subject to certain limitations.

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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