Election Voting Assistance

In the Condominium Act, it is very clear that only a unit’s owner can vote in election. That means that an election can’t be decided through the use of proxies (limited or general). There is an exception for associations with fewer than ten units who have voted to follow a different voting procedure.  In such an instance, the procedure set forth in the by-laws would be followed and if proxy voting is permitted in elections then the condominium could do so.

The question which gets asked a lot is whether a person holding a power of attorney can vote in an election.  The answer is no.  The statute confirms that when an owner needs assistance in casting their election ballot they can get it.  The key however is the definition of “need”.  Going on vacation or delegating to an adult child, realtor or tenant for convenience simply is not the “need” required by the statute.  The assistance needed must be due to blindness, disability or inability to read or write. In those circumstance the voter may request the help of a person of their choosing (e.g., family or friend) and they are not obligated to use an association employee, manager, or even a board member. The help provided is not voting for the person.  On the contrary it is to facilitate the owner voting for themselves by reading the entirety of the ballot (instructions and candidate names as written) to them.  The reader is not supposed to apply any tone or emphasis aimed at gaining a particular vote for one candidate over the other.

You may wonder where voting certificates factor in to the equation.  Voting certificates are only required if the governing documents require them.  For those that do they can impact units owned by spouses, multiple un-married persons, corporations, or any combination thereof.  In such an instance, once the voting certificate is complete and turned in, should the designated voter require assistance, the same criteria noted above would apply.

Originally posted on floridacondohoalawblog.com. Written by Marilyn Perez-Martinez

The Project Costs What!?! That Requires A Membership Vote

Condominium Associations are in the maintenance game it seems at times. Just when one project ends, another is beginning.  Maintenance is simply a fact of life for all condominiums.  A big problem arises in many condominiums, however, when the maintenance project is deemed by the membership to be too expensive as they believe the cost triggers their right to vote on whether the project can proceed.  This hiccup in condominium living usually comes up when the contract for the project is being discussed at a board meeting or when the dreaded special assessment notice gets posted.

It is of crucial importance that both owners and board members understand that just because a project carries a hefty price tag that does not make it subject to member approval.  Maintenance (which for purposes of this article includes repair and replacement work as well) of the common elements simply falls to the association no matter the cost. Note that I said maintenance rather than material alterations or additions.

Material alterations or additions occur for the most part, when you “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 functions, use or appearance.”  Sterling Village v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).  Simply put, changing the lobby carpet to tile and changing the building’s color from white to gray are usually considered material alterations.  Even then, however, a member vote may not always be required.  The Condominium Act provides that if a material alteration is to occur, the association must first obtain the vote of the membership authorizing the alteration.  If the condominium’s declaration is silent as to the approval required, the statute requires it to be by 75% of the total voting interests.  If the declaration, however, touches on the issue of material alterations one applies its requirements.  In such a situation, if the declaration allows the association to undertake material alterations without a member vote then it can proceed.  If it allows material alterations up to a specific financial limit then the association can proceed within that financial limit without a member vote.  The declaration can however still require a member vote and have the vote be a much lower threshold than the 75% set forth in the statute.  It can also be higher.

Note that the cost of a project which is otherwise purely maintenance does not factor into whether a member vote is required.  Nor is cost a consideration when a material alteration is going to occur unless the declaration specifically takes cost into consideration.

Something else for associations to consider is that the same project may have elements of maintenance for which a member vote is not required and elements of work which rise to the level of material alterations where a vote is required.  To figure out if your project has elements of both requires an understanding of what the law deems a material alteration coupled with the findings of any industry professionals and the involvement of the association’s counsel.

There are also exceptions to the material alteration doctrine which make a project maintenance despite it obviously palpably and perceptively changing the common elements in the manner described in Sterling Village. If you feel your condominium’s project might be subject to one of these exceptions, you should discuss it with the association’s attorney who will help create a roadmap for determining if the exception really exists.

 

Originally posted on floridacondohoalawblog.com. Written by Marilyn Perez-Martinez

 

Adopting Short Term Rental Restrictions

Q: My homeowners association is struggling with short term rentals in our community as many owners are using online providers to rent their homes for very short periods of time (sometimes nightly).  It is my understanding that the board for a homeowners association can set any non-discriminatory rental policy it wants, including minimum and maximum length of rental.  Is this true in Florida? J.T.

A: The answer to your question is “probably not.”  A review of your governing documents might result in a legal opinion that your board has that power, but that would be the exception to the rule.

Rental restrictions for a homeowners association are most commonly found in the declaration of covenants.  Most declaration of covenants can only be amended by approval of the owners.  Usually the approval of some type of super-majority is required, with either two-thirds or seventy five percent of the owners being the most common thresholds for amendments.

The board is most often granted authority over the administrative details of rentals (such as the right to require use of a specific application or registration form) in those communities where rentals are subject to association regulation.

Q: Can a condominium association in Florida prevent owners from renting their units? L.S.

A: The Florida Supreme Court addressed this issue in the 2002 landmark decision of Woodside Village Condominium Association v. Jahren, which my firm had the privilege of arguing before the Court on behalf of the association.  In that case, a condominium association amended its declaration to severely limit rentals by prohibiting annual and other long term rentals and basically only permitting seasonal rentals.

Certain unit owners complained that they bought their condominium units with the specific intention of leasing them annually, a practice permitted by the declaration when they bought their units.  These owners sued the association on the theory that they had lost vested property rights when the amendment was passed.  The trial judge and an appeals court sided with the investors.  However, the Florida Supreme Court ultimately found in favor of the association, ruling that when condo owners buy their units they are on notice that the contract that spells out their legal rights, the declaration of condominium, can be amended by the vote specified therein.

After this decision, investor groups lobbied the Florida Legislature for a change.  In 2004 the law was amended and now provides that an amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.

If your condominium was developed before 2004, there is some room to debate the retroactive effect of the statute.  However, most associations follow the law.

Q: I often hear allegations that my condominium association board of directors has violated the “sunshine laws.”  What does this refer to? D.A.

A: The Florida “sunshine law” applies only to certain governmental entities and agencies.  It is found in Chapter 286 of the Florida Statutes, and with few exceptions, generally prohibits any two members of a covered board or commission from meeting outside of a noticed and public meeting.

On the other hand, the notice and open meeting requirements that apply to community associations are found in specific statutory provisions of the Florida Homeowners’ Association Act, the Florida Condominium Act, and the Florida Cooperative Act.  Many attorneys, managers, and board members use the term “sunshine laws” when referring to these provisions, but really in a more colloquial or “industry slang” manner of speaking.

Section 718.112(2)(c) of the Florida Condominium Act contains all of the “sunshine law” provisions regulating notice and meetings for condominium associations.  You must also check the governing documents of your condominium association because they may contain additional requirements that must be met as well.

Unlike the Florida “sunshine law” which applies to governmental entities, association board members who constitute less than a quorum may meet at any time and discuss association business.  Obviously, without a quorum, formal decisions cannot be made.

When an allegation of “violating the sunshine law” is made in the community association context it usually means that an owner is alleging that a quorum of the board of directors has improperly met without noticing the board meeting and without allowing owners to attend.  That being said, there are two exceptions to the general rule that any time a quorum of the board meets the board meeting must be noticed and owners are permitted to attend.  The first exception is if the board is meeting to discuss personnel matters.  The other exception involves meetings with the association attorney to discuss pending or threatened litigation.  These “closed” board meetings must still be noticed, however, but owners are not permitted to attend.

Originally posted on floridacondohoalawblog.com. Written by Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

Not All Notices Can Be Sent By E-mail

Q: What legal notices does my association have to send to me, if any by U.S. mail. I signed an electronic notice authorization but keep getting a lot of association paperwork in the mail? (A.K., via e-mail)

A: Associations are generally required to send notices for membership meetings, committee meetings that require notice under the statute, budget meetings, board meetings to set the insurance deductible, board meetings to authorize electronic voting, and board meetings at which assessments or rules regarding parcel or unit use will be considered. However, Florida community associations are not required to send these types of notices by mail (or hand delivery, which is also usually a legally permissible method of delivery) when the owner has given written consent to receive notices by “electronic transmission,” which is usually e-mail, but could also be a fax number.

However, there are a few types of notices that cannot be sent by electronic transmission, even if the owner has consented to receive official notices by e-mail. These include certain notices related to recall meetings, notices given in connection with the collection of delinquent assessments, certain demand notices regarding violations of covenants and restrictions, notices pertaining to termination of a condominium, notices involving conversions under the “Roth Act” provision of the Florida Condominium Act, and notices under the Florida Homeowners’ Association Act demanding participating in mandatory pre-suit mediation.

Associations are still required to also post most types of legally required notice at a conspicuous location on the common areas (for homeowners’ associations) and a conspicuous location on the condominium property (for condominiums), both as designated by the board. The law was amended in 2018 to prohibit condominium associations from satisfying legal notice requirements by posting on association property.

Consent from an owner to receive electronic notice must specifically authorize, in writing, association to transmit notices electronically. Such consent must be made revocable at will by the owner. The consent forms must be retained as an official record of the association. Similarly, although owner e-mail addresses are generally protected from access by other owners, owners who agree to accept official notices by e-mail also consent to their e-mail addresses becoming part of the official records of the association.

The fact that an association has permission to use electronic notice does not mean that the association is obligated to do so. I have been told by several management companies that they do not like to use e-mail notices because they still have to do runs of the packages for owners who receive their notices by mail, and it is just as easy to run a mail package for the whole community as it is to separate out those which get e-mails. Managers have also expressed concern about having a meeting notice challenged when an owner who gets e-mail notices changes their e-mail address, and questions arise as to whom they told, and when about it.

Q: Is there a minimum dollar amount that is required to be in a condominium association’s reserves? (G.C., via e-mail)

A: The law requires reserves for roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. Reserve funding obligation is to be determined by a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

The statute allows the members to vote to waive or reduce the association’s annual reserve funding obligation and also permits votes to authorize use of reserves for a non-scheduled purpose. There is no minimum amount of reserves required by statute if the owners have properly voted to have no reserves. While this is not considered desirable, it is also not uncommon.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Board Can Regulate Alcohol on Common Property

Q: Our condominium association board recently made a rule that no beer, wine, or liquor can be brought into our swimming pool area. This came about because of one situation where some people got out of hand. Many of us enjoy socializing during “happy hour” around our pool. This seems like overkill and possibly illegal. What do you think? (K.M., via e-mail)

A: As the old saying goes, “one bad apple doesn’t spoil the whole bunch.” However, legally speaking, the decision is probably entirely in the hands of your board.

The Florida courts have held that a board-made rule regulating use of common property must be “reasonable.” While this is a stricter test than the standard used to judge the provisions of your declaration of condominium, the courts do tend to defer to the “business judgment” of the board in deciding what is reasonable. In order for a rule to be found reasonable, it does not have to be the only choice, nor necessarily the best choice, or even the choice that the judge personally agrees with.

In the 1975 case of Hidden Harbour Estates, Inc. v. Norman, a Florida appeals court specifically upheld the legal validity of a rule made by the association board prohibiting the consumption of alcohol on the common elements of the condominium. The court noted that “restrictions on the use of alcoholic beverages are widespread throughout both governmental and private sectors; there is nothing unreasonable or unusual about a group of people electing to prohibit their use in commonly owned areas.”

Your choices include asking for a meeting with the president and seeing if he or she will bring this matter back to the board for reconsideration. You could also seek to petition for an amendment to your declaration, which would supersede a board rule. A final option would be to seek to remove the board from office, which can be done by majority vote, or campaign for a more sympathetic board in the next election.

Q: In a condominium association, is my vote for amendments to the condominium documents public information that other unit owners can see? (R.O., via e-mail)

A: Most likely, yes. In a condominium association, other than for the election of directors, owners cast their votes in one of two ways. For owners who do not personally attend the meeting where the vote is held, they can only vote by limited proxy in most matters. Since a proxy must be signed to be legally valid, and is part of the official records of the association, it can’t be secret.

Owners who attend a meeting can vote by ballot or sometimes by voice vote. When ballots are cast at a meeting by members who are personally in attendance, I generally recommend that associations use signed ballots. That allows the votes to be verified in the event of a dispute, and to ensure those that have turned in proxies but also attend the meeting in person don’t inadvertently vote twice. Some bylaws permit voting by secret ballot at members’ meetings, but that is not common. It is my view that the board has the ultimate say in the type of voting documents used, absent specific requirements in the bylaws.

With regard to votes to approve amendments to the condominium documents, there are times where even if secret ballots are permitted, it is necessary to be able to verify which owners voted in favor of the amendments. For example, certain amendments regarding leasing are only applicable to those owners who vote in favor of the amendment, or who take title to their unit after the effective date of the amendment. In that situation, the association would have to be able to verify how each owner voted in order to determine whether the amendment was applicable to them.

For the election of directors in a condominium association, the statute requires the use of secret ballots. Secret ballots are also typically used in the election of directors for homeowners’ associations.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Names of Fellow Unit Owners Is Public Record

Q: I am requesting from the association office the names of each unit owner in my condominium association. Is the office legally required to furnish that list to me? (J.G., via e-mail)

A: If your request for the names of each unit owner was made in writing, the association is legally required to make them available to you for inspection or copying within 10 working days after the association received your written request. If the request was not made in writing, there is not a similar legal requirement.

The Florida Condominium Act provides that a current roster of all unit owners is an official record of the association that must be maintained by the association. Under the Act, the association is also legally required to make the current unit owner roster available to any unit owner for inspection or copying (at a reasonable expense) at all reasonable times on the condominium property (or otherwise within 45 miles of the condominium property or in the county where the condominium property is located) within 10 working days after receipt of a written request. Inspection and copying of the current unit owner roster would be subject to any reasonable rules regarding the manner and frequency of such inspections and copying duly adopted by the Board. The association may, but is not obligated to, offer the option of making the current unit owner roster available to you online or by e-mail.

The failure of the association to make the current unit owner roster available to you for inspection or copying within 10 working days creates a rebuttable presumption that the association willfully failed to comply with this legal requirement. A unit owner who is denied access to the current unit owner roster, or any other official record, is entitled to the actual damages or minimum damages of $50 per calendar day up to 10 days beginning on the 11th working day after the date the written request was received by the association.

For anyone who is concerned about personal information of theirs being shared with other unit owners, the Act protects certain telephone numbers, e-mail addresses, and other “personal identifying information” of unit owners, including social security numbers, driver’s license numbers, and credit card numbers. Although the law does not clearly define what is and is not “personal identifying information,” unit owner names, their unit numbers, and their mailing addresses are not personal identifying information exempt from official records inspection and copying requirements and are readily available online from the county property appraiser.

Q: My elderly mother lives in a neighborhood with a homeowners’ association. She is not really computer savvy. All of the newsletters and information alerts that the HOA sends out are by e-mail, so she is not in the loop as to what is going on in her neighborhood. This seems very unfair to me. Is this legal? (L.G., via e-mail)

A: It is not illegal.

Condominium, cooperative and homeowners’ associations in Florida must send official notices (for example the annual meeting notice) by U.S. Mail or hand delivery. However, if a property owner signs a consent form, the association may send them official notices by electronic transmission, typically referred to as e-mail.

In recognition of the prevalence and convenience of electronic communication, the law was also amended a few years ago stating that proxies for association meetings could be sent in by e-mail (scanned attachment) regardless of any provision in the association’s bylaws to the contrary.

For better or worse, the days of the mailed out “Association Newsletter” are reaching their end. There is no legal requirement for these communications and most associations use the means that is both easiest for the association, and most convenient for the majority of its members. In most cases, this involves either “e-mail blasts” or website postings, with no paper involved.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams