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Eligibility to Run for Condominium Board Depends on Governing Documents

Question:  The wife of an owner (only the husband is on the deed) is running for the Board of our condominium association.  Is she eligible to run for the Board?  I thought you had to be an owner under Florida Law to serve on a condominium association Board?  D.A. via e-mail

Answer:  Florida law does contain certain minimum requirements for a person to be eligible to serve on the board of directors for a community association.  As an example, The Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes) requires a board member to be eighteen years of age or older.  Further, The Condominium Act (Chapter 718, Florida Statutes) contains certain eligibility requirements to serve on the board, including a prohibition on felons serving on the board, unless their civil rights have been restored for a period of no less than 5 years.  That being said, there is no requirement within Florida law for a person to be a “member” (i.e. name on the deed) of a condominium association before they are eligible to serve on the board.  Many condominium association governing documents, however, do require a person to be a “member” of the condominium association to be eligible to serve on the board.  The answer to your question will depend on the specific language contained within your condominium association’s governing documents.

Condo/HOA Meeting Agendas & Notice Requirements

The statutes governing community associations require notice of meetings to encourage owner participation. HOAleader recently published an article on this subject: HOA Meetings: Does Your State Have Rules for Your Meeting Agendas? Here are some handy reminders – there are additional options in the statutes. This list is not intended to be all inclusive.

MEETING TYPE CONDO/CO-OP HOA
Board meeting(s) 48 hours posted (or pursuant to documents) with agenda 48 hours posted (or pursuant to documents)
Budget meeting(s) 14 days mailed (along with a copy of the proposed budget) and posted, unless documents require a longer time period Pursuant to documents
Annual meeting(s) 60 days for first notice; 14 days for second notice, mailed, delivered or electronically transmitted 14 days mailed, delivered or electronically transmitted (unless documents require more notice)
Special assessment(s) 14 days mailed and posted– condos must also include the purpose & estimated amount of special assessment in the meeting notice (14 days applies to meetings to establish the insurance deductible as well) 14 days mailed and posted
Board meeting(s) to adopt rules regarding unit or parcel use 14 days mailed (along with a copy of the proposed rule) and posted 14 days mailed (along with a copy of the proposed rule) and posted
Member meeting(s) Pursuant to By-Laws (usually at least 14 days mailed, delivered or electronically transmitted) 14 days mailed, delivered or electronically transmitted (unless documents require more notice)
Committee meeting(s) Committees that take final action on behalf of the board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance, and the meetings must be open to the unit owners. 

Committees that DO NOT take final action on behalf of the board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance, and the meetings must be open to the unit owners, UNLESS the By-Laws provide otherwise.

Must be posted 48 hours in advance when a final decision will be made regarding the expenditure of association funds and to meetings of any committee vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community
Association attorney meeting(s) Must be noticed 48 hours in advance, but are not open to unit owners when the meeting is held for the purpose of seeking or rendering legal advic Must be noticed 48 hours in advance (or pursuant to documents), but are not open to owners when the meeting relates to proposed or pending litigation or personnel matters.

Tropical Storm Eta

The best time to prepare for a hurricane is before hurricane season begins on June 1. It is vital to understand your home’s vulnerability to storm surge, flooding, and wind. Here is your checklist of things to do BEFORE hurricane seasons begins.

  • Know your zone: Do you live near the Gulf or Atlantic Coasts? Find out if you live in a hurricane evacuation area by contacting your local government/emergency management office or by checking the evacuation site website.
  • Put Together an Emergency Kit: Put together a basic emergency. Check emergency equipment, such as flashlights, generators and storm shutters.
  • Write or review your Family Emergency Plan: Before an emergency happens, sit down with your family or close friends and decide how you will get in contact with each other, where you will go, and what you will do in an emergency. Keep a copy of this plan in your emergency supplies kit or another safe place where you can access it in the event of a disaster. Start at the Ready.Gov emergency plan webpage.
  • Review Your Insurance Policies: Review your insurance policies to ensure that you have adequate coverage for your home and personal property.
  • Understand NWS forecast products, especially the meaning of NWS watches and warnings.
  • Preparation tips for your home from the Federal Alliance for Safe Homes
  • Preparation Tips for those with Chronic Illnesses

Download our checklists and more free resources.

Board Makes Parking Rules

Q: Is it necessary for the board of my condominium association to get a vote from the owners to change parking rules? They want to restrict me from parking my third vehicle on the property. I have been living here for over a year with three vehicles and no problem. (R.T., via e-mail)

A: The vast majority of governing documents grant the board the authority to make and amend and promulgate rules regarding the common elements. Board made rules cannot conflict with the declaration of condominium, nor rights which are inferable from the declaration. Further, board made rules must be “reasonable.”

Whether a particular rule is reasonable depends on the facts of each case. Some deference is given to the board’s business judgment and the board does not need to choose the least restrictive alternative when there are choices of approach. The development regulations for many condominiums only required 1.5 parking spaces per unit at the time the condominium was built. Obviously, in such case, every owner could not have 3 vehicles.

Q: Our development has 10 fountains in 7 ponds. The board reduced the operating time of the fountains from 12 to 6 hours a day. Owners of homes with a fountain view feel like the enjoyment and value of their homes has diminished. Is this a material change under Florida law that would require membership vote? (R.D., via e-mail)

A: The seminal case in Florida defines “material alterations” in the condominium context as those changes which “palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”

The condominium law states that there shall be no material alterations or substantial additions to the common elements except as provided in the declaration of condominium. If the declaration is silent, seventy five percent of all unit owners must approve the change. Although not set forth in your question, it appears that your community may not be governed by the condominium statute, but rather Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act. This statute does not have a “material alteration clause” and the case law under the statute suggests that the governing documents control the question.

Based on the situation you describe, the fountains will continue to operate in accordance with their general function, use, and appearance. Rather, the board is making a decision as to how these common elements or common areas will be operated. Most governing documents, as well as applicable case law, generally give the board relatively wide latitude regarding operation of common property.

Q: Our community has a building with 6 connected villas under a common roof. Homeowners are required to carry their own insurance and most have different insurers. If one company says that the building has hurricane roof damage, but the others disagree, would that insurer have to cover the entire roof for the 6 villas? (B.B., via e-mail)

A: That question could only be answered by having an attorney who is competent in insurance coverage issues review the applicable insurance policy. Without prejudging what might come from such a review, the short answer is “I doubt it.”
This is a common issue for this type of community. Over the years, I have seen situations where one villa owner may have inadequate insurance, or no insurance at all, and decides to “walk away” after a major loss, such as a hurricane. There are a number of approaches that could be considered to protect all of the owners, including requiring proof of insurance, requiring rebuilding/repair within a certain time frame, and setting forth effective enforcement remedies. This will usually require an amendment to the declaration of covenants.

CALL Alert: 2020 Legislative Guide Now Available Online

Our 2020 Legislative Guide is designed to help your volunteer board and management professionals understand and implement the new laws which impact community associations each year. Given the significant percentage of Florida’s population which resides in shared ownership communities, we are virtually guaranteed to have numerous association bills sponsored each year with some of those proposals becoming new laws.

Florida’s 2020 Legislative Session produced the long-awaited criminalization of fraudulent emotional support animal requests. As of July 1, people who submit fraudulent documentation to support their request for a service animal or an emotional support animal (ESA) in a Florida community or who otherwise hold themselves out as being physically or mentally disabled when they are not, risk being imprisoned, fined and/or ordered to perform community service. Already we are seeing an encouraging trend that when associations use experienced counsel to engage in a meaningful dialogue with the requesting party, insufficient documentation becomes more apparent and dubious requests are often withdrawn.

There are also new legal protections for condominium, cooperative and HOA residents to park a law enforcement vehicle in their communities as well as new rights for HOA residents to use fireworks on the 4th of July, Christmas Eve, New Year’s Eve and New Year’s Day regardless of any HOA restrictions to the contrary.

One of the newly passed laws declares void and unenforceable all “discriminatory restrictions” (e.g. those based on race, color, national origin, religion, gender, or physical disability) contained in any recorded title transaction. Some older association documents may contain pernicious, decades-old discriminatory use restrictions that can now easily be removed by an amendment approved by a majority vote of the board of directors. With our 6-month hurricane season in Florida, the new law which amends Section 631.57 of the Florida Statutes to increase the amount of coverage for property insurance claims by a condominium, cooperative or homeowners’ association under the Florida Insurance Guaranty Association (FIGA) from $100,000 to $200,000 multiplied by the number of units is a positive change.

Lastly, associations operating “55 and Over” communities will welcome the news that a new law deletes the prior registration requirements (a letter to the Florida Commission on Human Relations once every two years, with a fine of up to $500 if they failed to do so) for these communities and eliminates related forms, fees, and fines.

While many of the foregoing new laws are helpful, the community association legislation passed during Florida’s 2020 Legislative Session unfortunately could not address the unprecedented challenges presented by the COVID-19 pandemic as the Session ended right when the health crisis erupted. Volunteer boards who had never grappled with a pandemic before made impactful decisions to close certain amenities, restrict the flow of visitors into the community and marshaled the resources needed to heighten sanitization and implement other safety measures needed to protect their residents. All of this was done at times in the face of vocal resident opposition and a lack of clarity and support from government officials.

It is CALL’s mission, however, to ensure that the crop of 2021 association bills will incorporate some of the lessons we’ve learned from the COVID-19 crisis and provide new tools to assist volunteer boards in the coming years. In the interim, there are steps your community can take by amending your governing documents and implementing necessary policies and protocols to provide you with greater flexibility and a wider range of options when you are inevitably confronted with the next challenge life brings your way.

Click here to view the 2020 Legislative Guide now!

Easements and Presidents Solutions Property Management

EASEMENTS & PRESIDENTS

Q: My homeowners’ association has maintenance access easements over certain areas across the lots adjacent to a pond. Does this mean that all homeowners’ association owners/members are allowed to walk over these access easements to access the pond? (D.P., via e-mail)

A: It depends upon the language of the grant of easement itself, which will usually be found either in the declaration of covenants or on the plats.

An easement is a legal right to use the real property of another for a specific purpose. Here, the easement that you describe is stated to be for “maintenance access.” As such, it seems that the intended purpose of this easement is to provide access only for the maintenance of the pond. Without further information, and absent another easement that applies to this area, my guess would be that a lot owner would be well within their rights to prohibit individuals who are not accessing the property for the purpose of maintenance from crossing the lot.

Most governing documents specify the different types of easements being granted and define to whom the easement holders will be. For example, in some cases, maintenance and utility easements are granted to the association, its employees, agents and hired contractors, to utility companies, to governmental and emergency services for the operation, maintenance, and repair of the property.

The general law is that easements are to be limited to their intended use and may not be “overburdened” by the holder of the easement.

Q: The president of my homeowners’ association is in the process of selling her home and will be moving out of the community. Questions have arisen concerning when she is considered off the board and how does the association select a new president. Some feel the vice president would automatically become the president of the association. How is this handled? (C.H., via e-mail)

A: Your question raises a number of issues including how vacancies are created on the board, how those vacancies are filled and the difference between seating and filling vacancies for directors and officers.

Whether the president’s sale of her home automatically creates a vacancy of the board there is no statutory requirement that board members must be owners. Therefore, unless there is a requirement in the governing documents that all board members be owners in the community, the fact that she sells her home will not in and of itself, create a vacancy on the board.

Assuming that the president no longer wishes to serve on the board and resigns, or that she is disqualified because the governing documents require property ownership to sit on the board, a majority of the remaining board members usually have the authority to fill a vacancy created on the board of directors.

This individual’s presidency is a different issue. While most governing documents require the board president to be a director, that is not universal. So again, the first question is whether the sale of the home is an automatic disqualification or if the president also needs to affirmatively resign her office.

While most documents provide that the vice president performs the duties of the president when the president is not available, the vice president does not automatically become the president if the president resigns or is disqualified from service on the board. Rather, absent an unusual provision in the governing documents, the directors would elect a new president, which could be the current vice president, but does not have to be.

Restitution For Our Client

Solutions Property Management Corp has successfully obtained restitution for one of our owners against a vendor we’ve been aggressively fighting for over a year with the state attorney’s office.

Solutions is proud to have healthy and historical partnerships with local vendors. Sometimes it’s scary when you try to establish new relationships with vendors that you are not familiar with.  We carry very high expectations with our maintenance and repairs..  Contracts and SOW’s will be enforced.. When reviewing finished repairs and maintenance with our vendors, this is the time to make sure our properties have been well-cared-for and confirmed all has been completed adequately.

A deposit had been given to a local vendor for a project on one of our properties…. And after the expectations were not met the vendor decided not to return the deposit.. They abandoned the property and took off with the owners money… This owner is also an active military owner serving his country on the expectations that others would take care of him and his investment property..

Our job is not to only “manage”. It’s to help protect the integrity of our dwellings, owners, tenants, and associations. Proving that we care about all aspects of EFFICIENT “Property Management”.

We are proud to serve our community with the fullest regard.  We will always remain Solutions Proud.

Rachel Decamp,  Director of Management-LREA, LCAM

What does Phase 3 Reopen Order Mean For Your Community’s Covid Protocols?

Last week, Governor Ron DeSantis issued EO 20-244 entitled “Right to Work, Business Certainty and Suspension of Fines.”

This order, known colloquially as the Phase 3 Reopen Order, is designed to stimulate the economy and permit businesses, particularly restaurants, to fully reopen.  This latest EO prohibits local government orders from limiting indoor capacity to less than 50% and requires that any local order limiting indoor capacity to less than 100% quantify the economic impact and explain the compelling public health reason for the limitation.  This latest EO also suspends the rights of local government to impose fines for mask violations.  The Phase 3 Reopen Order did NOT rescind Florida’s State of Emergency which currently continues until November 3.

Counties with previously high COVID-19 numbers (e.g. Miami-Dade, Broward and Palm Beach) have been issuing statements and revised orders to further clarify the situation for their residents.  However, many of you may still have questions and will be faced with questions from your residents regarding the impact of this latest order on your board’s ability to continue to restrict or keep amenities closed, limit guest access to your community, hold virtual meetings and require facial coverings in the common areas.

Mixed-use communities with commercial units conducting business might have to revise some of their protocols as a result of the Phase 3 Reopen Order.  However, for Florida’s private residential communities, the best approach is to contact your attorney to discuss the impact of this order so that you are prepared to answer the inevitable questions.  The Phase 3 Reopen Order does not require boards in private residential communities to rescind or relax any existing COVID-19 protocols or prevent your board from levying fines for violations.  Remember, government orders are influenced by a number of factors, but they set the minimum scope for your COVID-19 restrictions and are not the limit of your right to adopt stricter standards.  As has been the case for over 6 months now, the protocols for your community must be continually revisited and re-evaluated based upon the existing impact and potential impact of the virus within your community and the surrounding area and available medical information on best practices to keep your residents and staff safe. While these protections must be balanced against the use rights of the owners and residents, life safety remains the top priority.