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Quorum and Amendment Vote Different

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Q: There has been confusion in my homeowners’ association regarding the vote required to approve amendments. We understand that the law states that the quorum for a members’ meeting cannot exceed 30% of the membership. However, our documents state that two-thirds of all owners must vote to approve amendments to our declaration. Is that legal? (B.V., via e-mail)

A: Your question raises two different issues. The first relates to the quorum requirement for your association to hold meetings of the membership (the homeowners), such as your annual meeting or a special meeting.

Section 720.306(1)(a) of the Florida Homeowners’ Association Act was amended in 1995 to say that unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30% of the total voting interests. There is usually one “voting interest” assigned to each lot/home. Therefore, if your community has 100 homes, you would need 30 of their owners to come to a meeting or send in a proxy for a quorum to be established and for a meeting to be lawfully conducted.

Many homeowners’ association documents which were written before 1995 have higher quorum percentages such as one-third or a majority of the total voting interests. In the event of a conflict, it would be advisable to amend your documents to comply with the law. While there are differences of opinion on whether the current quorum requirement of 30% can be applied to a pre-1995 association whose bylaws contain a higher number, and no case decisions on point, I believe most practitioners take the position that this is a procedural rule and that the 30% maximum in the statute applies to all homeowners’ associations.

Your second question involves the membership vote required to amend your declaration of covenants. Here, the wording of the document itself is key. Since the declaration is an important property rights document, most require some super-majority level of approval to amend. In my experience, two- thirds of the voting interests is probably the most common threshold.

There are major differences in how that voting requirement can be applied. For example, if your declaration says that amendments require “at least two thirds of the voting interests” to amend, you would need 67 votes in our hypothetical 100 lot HOA. You would only need 30 votes to call the meeting to order and conduct it, but the amendment could not pass even if everyone voted for it because 67 votes would be required.

On the other hand, if your declaration states that it can be amended by a vote of “not less than two thirds of the voting interests present, in person or by proxy, and voting at a duly notice meeting of the association at which a quorum has been established,” you have an entirely different situation. Here, you would need to establish your quorum as explained earlier, and then take the vote on the amendments. For example, if 60 owners attended the meeting in person or by proxy, with 50 voting in favor of the amendment and 10 opposed, the amendment would fail in the first scenario and pass in the second. Amendments to your declaration should be prepared by legal counsel, who should also explain the required vote to amend regarding any proposal.

Q: If I own 4 units in my condominium and there are multiple people running for the board of directors (5 candidates for 3 seats), how many times can I vote for each person or is there a limit in Florida law? (J.A., via e-mail).

A: You should receive 4 separate ballots and can vote for up to 3 candidates of your choice on each ballot. You can cast all 4 ballots for the same 3 candidates or vote each ballot differently.

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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