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Can Gate Use Be Suspended?

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Q: We live in a gated community. Recently, the board has begun voting at its meetings to suspend the automatic gate access of owners who are delinquent in their assessments. While I support aggressive collection efforts by the association, I am worried that this type of suspension exposes the association to risks. Is a homeowners’ association permitted to do this? (V.R., via e-mail)

A: The Florida Homeowners’ Association Act permits the association to suspend an owner’s use rights in the common facilities of the association either in response to violations of the governing documents, or when the owner is more than 90 days delinquent in the payment of any fee, fine, or other monetary obligation to the association.

When the association is suspending an owner due to their violation of the governing documents, the statute requires that the association first give the owner at least 14 days’ notice of a hearing before an impartial committee made up of owners who are not board members or family members of board members. The committee must either approve or reject the proposed suspension. The board may suspend an owner’s use rights in the common facilities of the association for nonpayment of financial obligations at a board meeting, without prior notice to the owner. Once the suspension is imposed, the association must provide notice of the suspension to the owner.

Under the law, suspensions are not permitted for those portions of common areas used to provide access to the parcel (home). A suspension may not prohibit an owner or tenant from having vehicular and pedestrian ingress and ingress to and from the parcel, including but not limited to the right to park. The statute was amended several years ago to state that the suspension may not “prohibit” access. The prior version of the statute said that suspension could not “impair” the right of access. Although to my knowledge this change in the law has not been interpreted by the courts, many view it as legislative authority to turn off automatic gate access as long as the owner and/or their tenants have access, such through an attended gate.

Q: How many days in advance must a homeowners’ association send out the notice of annual meeting along with the agenda, ballots, and proxies? Can you use a proxy for the purpose of voting for the election of board members? (K.C., via e-mail)

A: Unless the homeowners’ association governing documents provide otherwise, notice of the annual meeting must be mailed, hand-delivered, or electronically transmitted (to those owners who have consented in writing to receive electronic notice) to owners at the address identified as the owner’s mailing address in the official records of the association at least 14 days prior to the meeting. Proof of such mailing must be by affidavit of the person mailing the notice or United States Postal Service certificate of mailing.

There is no legal requirement to send a proxy with the meeting notice, though most associations do so. The law permits the governing documents, typically the bylaws, to impose additional notice requirements. The election of the directors must be conducted as set forth in the governing documents, contrary to condominium law where a uniform procedure is required for all elections.

Some governing documents require absentee ballots for director elections to be sent out with the notice, some do not. Again, contrary to the law for condominiums, the Florida Homeowners’ Association Act does not preclude the use of proxies in director elections, although the bylaws may. Similarly, there is no statutory requirement for the use of a “limited proxy” in the HOA voting, this is not permitted in condominiums.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.

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