Getting A Mulligan (Do-Over) for Your Board in 2018

Whether we call them mistakes, oversights, slip-ups or boo boos, we all make them including volunteer board members who are often hamstrung by both operational and time constraints.
The new year provides an optimal opportunity to correct items from 2017 or even earlier.  The law allows a corporation which has taken authorized actions but which were done in a procedurally incorrect manner to ratify those actions by approving them again, but this time following proper procedure.
Have any of the following occurred in your community?
 

1.    You made alterations to the common elements or association property but failed to obtain the requisite membership approval.

2.    You did not hold your annual meeting on the date specified in the documents and a member called you out on it.

3.    You had to discard several election ballots because you did not have voting certificates on file for those units.

 

4.    You were challenged when you attempted to enforce a rule or restriction because a prior board failed to enforce or failed to properly adopt that same rule or restriction.
5.    You took a Board action (filled a vacant seat, signed a contract, fired an association employee, levied a special assessment or adopted a budget, etc.) outside the scope of a duly noticed Board meeting and vote.

6.    Your members passed an amendment and you failed to record it or an amendment was prepared and never presented to the membership for a vote.

Here are the solutions to the foregoing problems:


1.    We can prepare and pass a membership vote which would allow your members to approve of and ratify all prior changes, additions and modifications made by the Association to the Common Elements and Association property or any other action that required a membership vote which was not taken.

2.    We can amend your documents to give your Board more flexibility when setting the date and time for the annual members’ meeting and election so you do not risk a technical violation in the future.

3.    We can amend your documents to eliminate the requirement for a voting certificate for husband and wife and other co-owners of units other than units owned by corporations or business entities.  Doing so will eliminate most of the confusion and time-consuming fuss at your meeting to determine whether or not the outer envelopes were properly signed by the voting certificate holder.  Along those lines, implementing online voting will also eliminate these outer envelope judgment calls at your election.

4.    Just because a prior board has not strictly and uniformly enforced certain provisions of your governing documents does not mean your board is forever prohibited from doing so.  We can undertake a process known as republication which will allow you to breathe new life into those unenforceable restrictions and once again allow you to successfully enforce them.

5.    Prior unauthorized or procedurally improper actions require a discussion regarding the nature of those actions and preparation of the necessary materials to ratify same.

6.    If the membership vote was within a relatively recent period of time, we can proceed with recording that amendment or amendments; if not we may need to start the process over again. If you have been sitting on an amendment which was prepared but never voted upon, depending on the age of the amendment, we may need to review and revise that language.

This list is not comprehensive.  There may be other items where a transition in management or in the composition of the Board may have resulted in items falling through the cracks. If you have questions about how to correct any of these problems in your community, you can email me at dberger@bplegal.com or by phone at .1-844-CAREBP1.

Originally written by Donna DiMaggio-Berger and posted at the Community Association Law Blog

Rental Amendments Require Proper Procedure

 

Q:        My association recently sent out the annual meeting notice materials. There is a proxy question which reads: “Should the minimum rental term be increased to 90 days?” There was no other documents or discussion regarding the amendment included in the meeting materials. Is this legal? (J.P. via e-mail)

A:        Probably not, although this is a somewhat complicated legal issue.

First, if your association is governed by the Florida Condominium Act, proposed amendments to the declaration of condominium (which is usually where rental terms are set) must be presented in a “black-lined” fashion. This means that proposed additions to the declaration are underlined, and proposed deletions are stricken through. There is an exception when the changes are so substantial that the black-lining method would be too confusing.

While there is no requirement in the Act that the text of a proposed amendment be included with the notice of meeting where it will be voted on, many declarations require this to be done. Also, it is universal practice to do so, in order for the owners to know exactly what they are voting on before the day of the meeting.

Further, condominiums are governed by a provision in the statute which states that owners who do not vote to approve additional restrictions on the frequency or duration of leases (by either voting against the measure or not voting at all) are grandfathered from the amendment, though it will be binding on their successors in title.

If you are part of a homeowners’ association, the law is a bit different. There is no legal requirement in the Florida Homeowners’ Association Act for presentation of amendments in black-lined format. Actually, this statute does not really address amendment procedures at all. Most governing documents will contain some guidance on amendment procedure. Again, it is nearly universal practice to include a black-lined text of the amendments (or amendments presented in the “substantial wording” format) so that owners know what they are being asked to vote on. At the very least, the proxy should describe what provision of the governing documents are being amended.

The rental amendment grandfathering law for condominiums does not apply to homeowners’ associations. However, there is an annual effort by vacation/resort interests to apply the same regulations to Homeowners’ Associations. I am told there is a recently filed amendment in the pending legislative session to this effect.

Q:        I read your article “Fining Procedures Confound Board.” I am still confounded. Can the board impose a fine if the fining committee sides with the violator? (M.D. via e-mail)

A:        This column was published on March 26, 2017. All of my previous columns are available on my law firm’s blog at https://www.floridacondohoalawblog.com/about. Please feel free to subscribe.

The answer to your question is no. If the independent committee (which you refer to as the fining committee, which is often the name used) “rejects” a proposed fine or suspension, it cannot be imposed. That is the end of the matter, although this would not preclude enforcement of a violation through court or arbitration if it were of an ongoing nature.

Q:        My window was damaged by Hurricane Irma. It is covered by the association’s insurance policy, but the total damage to our building is well below the deductible. Who pays for my new window? (M.G. via e-mail)

A:        The association. The Florida Condominium Act provides that when an association insures an element of a building, it is required to fix the element after an “insurable event” and assess all unit owners for any shortfalls not covered by insurance, including those because of a deductible. This is the so-called Plaza East Rule of the statute, which was incorporated into the law in 2008.

Writen by Joe Adams and originally posted on the FL Condo HOA Law Blog

Can My Association Send Notices Electronically?

Florida community associations are permitted to send membership meeting notices and certain board meeting notices to the owners electronically if the association obtains the written consent of the subject owner. The association attorney can assist in preparing the applicable consent form, which will need to include the designated e-mail address the owner wishes the notices to be sent to. Taking this step can undoubtedly help save time and money, however community associations must still send notices the “old-fashioned” way – yes, that’s right, through the mail – for any owner who does not give their consent to “go paperless.”  Hand-delivery of the notice can also be an option but hand-delivery does come with certain challenges and it is recommended to obtain a written receipt.  Also remember that there is a requirement to post these notices in a designated place within the condominium property, which must still be adhered to even if all owners have consented to receive meeting notices electronically.

 

Written by David G. Muller and originally posted on the FL Condo HOA Law Blog