Avoid a Gridlock – Educate, Communicate & Plan

When strangers come together as a new board of directors for a community association, they may find they have such differing views on what is best for the building that they can feel as though they are in a no win scenario.  While working to find a creative solution to the problem is something we as lawyers work on every day, it is not always quite as natural for board members, especially when they have never served in this capacity before.

Serving as a new board member has, among its challenges, a steep learning curve.  I think it is safe to say that condominium law and governing documents for a given community can, at times, be less than easy to understand.  Community Association law uses some unique terminology and there are sometimes subtle, but hugely important, differences on what something means depending on whether a particular word is used.  Consider the terms officers and directors.  While many people understand that a director is someone who is elected by the membership to serve on the board of directors and officer is a position that a director may hold, others may confuse the two terms.  Reading the Condominium Act, that person may read the provision that states that “Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration” and misunderstand that directors can be removed at any time on a board vote.

Another common confusion that arises is the use of the word “By Laws” instead of Declaration.  These are two very different documents and certain provisions must be in the Declaration in order to be valid.  Similarly, the use of the word “maintenance” instead of the word “assessments.”  A review of the Condominium Act will show that nowhere is an owner required to “pay maintenance” but they are required to pay “assessments” and their unit can be liened for failure to pay “assessments” timely.

When you couple the unfamiliar language that can be used in community association law, with the misunderstanding of what the documents require and years of a particular administration doing something a certain way, a brand new slate of directors intent on making changes can clash spectacularly and cause what Washington D.C. deems “gridlock.”

The first thing to do in a situation like this is to make sure that everyone becomes educated on the issues.  The statutes require “newly elected or appointed directors to certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.” Instead of this certification, the newly elected or appointed directors may attend an educational curriculum administered by a division-approved condominium education provider and submit a certificate of having satisfactorily completed the educational curriculum.

If new board members feel comfortable reading and certifying their knowledge of all of the information after reading the required documents, then by all means, they should do so.  However, for those who feel less than comfortable with the self-teaching that could be required in the first option, attending a class is a great option.  Many free classes are available to new board members and there are a myriad of ways to attend.  Live classes not only offer the opportunity to ask questions, but also to listen to other people ask questions.  Many times, this can be just as educational.  Also, if the new board of a condominium goes together to the class, it can provide a team building opportunity as well as ensure they are all getting the same information and can understand where the others are coming from.  It is important also in helping people to understand that just because the building next door does something in a particular way, does not mean that the law allows for this, or that your building should be doing it.  From a management perspective, attending these classes with new board members is also helpful to create realistic expectations and help all parties understand the division of labor and responsibilities that exist between a manager and a board.

Once the new board is educated, the communication is the key to understanding and working together.  Holding frequent board meetings to discuss condominium issues will help not only inform the unit owners, but also keep the lines of communication open on a regular basis.  The new board may find that frequent exchanges of ideas and concerns will facilitate an understanding that they are all working toward a better community and that there can be many paths that lead to the same place.  While email is a useful tool for our everyday lives, new (and experienced) board members should refrain from email exchanges when possible, as that can inadvertently lead to email decisions.  The statutes now expressly prohibit email “voting”, even though that was not necessarily authorized before.  The better goal is to have the discussions on the issues in front of the unit owners that may want to attend the meetings, rather than arrive at the meetings only to state the motion, hold a summary vote, and close the meeting.

Finally, creating and agreeing on a list of priorities can help shape the tenure of the new board.  As we all know, time flies when you are having fun.  Although a year can seem like a long time, in the world of projects, construction, maintenance and day to day operation of a condominium, a year can go by much faster than many people expect.  Rather than wasting the year debating on which project is most important, taking the time at the beginning of the year to decide the order and importance of necessary projects, maintenance, and issues to address can not only help shape the budget and expenditures in a fiscally responsible way, but also help temper unrealistic expectations of owners and board members alike.

In summary, educate, communicate, and plan before acting.

 

Originally posted on floridacondohoalawblog.com. Written by Lilliana Farinas-Sabogal

 

Fines and Board Eligibility

Many times, associations are challenged by owners who believe their names were improperly kept off the election ballot because the owner did not agree that they owed a fine.  The Condominium Act states that a person who is delinquent in the payment of any monetary obligation to the association is not eligible to be a candidate for the board.  The date of eligibility is established 40 days before the annual meeting and election.  As such, if an owner turns in their candidate notice 50 days before the election and owes a fine at that time, they can still be on the ballot so long as they paid the fine by the 40-day deadline.  If the fine remains unpaid as of the deadline, the unpaid fine is considered a monetary obligation, which means that pursuant to the statute, the person is not a proper candidate for the board and their name should not be on the ballot.  This is true whether the person has challenged or otherwise disputed the fine.

Originally posted on floridacondohoalawblog.com. Written by David G. Muller

 

Different Laws Govern Associations

Q: My community has both single-family homes and townhouses. A question has arisen as to whether the laws that govern condominium associations or homeowners’ associations apply. Can you clarify this for us? (B.K., via e-mail)

A: The answer would depend on the language of the governing documents for your association. Condominiums are governed by Chapter 718 of the Florida Statutes, known as the Florida Condominium Act. In order for the property to be a condominium, it would have to have been created pursuant to a recorded declaration of condominium.

Homeowners’ associations are governed by Chapter 720 of the Florida Statutes, known as the Florida Homeowners’ Association Act. Property subject to this law does not have to be created in a specific statutory manner, but is usually created by a declaration of covenants. The statutory tests to determine whether a community and its association are governed by Chapter 720 are whether the association is responsible for the operation of a community where the voting membership is made up of the parcel owners or their agents, or a combination thereof, where membership in the association is a mandatory condition of ownership and where the association is authorized to impose assessments and record a claim of lien against the parcel if the assessments go unpaid.

Condominiums and communities governed by homeowners’ associations take many forms, so you cannot tell just by looking at the property. For example, some condominiums are freestanding buildings (typical single family home) where the units are actually plots of land or the footprint of the building. Conversely, some homeowners’ associations govern townhouse or villa-style dwellings where there are multiple dwellings contained in each building that “look like” condominiums.

Q: Recently, our condominium board discussed replacing our pool deck. Our pool deck is currently made up of composite decking material. The board wants to install a cement deck. Doesn’t this require a vote of our unit owners? (K.M., via e-mail)

A: Possibly. The Florida Condominium Act states that there shall be no material alteration or substantial additions to the common elements except in the manner provided in the declaration. If the declaration is silent, then such material alterations or substantial additions must be approved by a 75% vote of the total voting interest of the association.

The seminal case defining “material alterations” comes from a 1971 decision from Florida’s Fourth District Court of Appeal called Sterling Village v. Breitenbach. In Sterling Village , the court stated that if the change “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,” such a change was a material alteration.

Under the test set out in Sterling Village, replacing a composite deck with a concrete deck would appear to be a material alteration and may or may not be subject to owner approval based on the language in your declaration. For example, many declarations allow a board to spend a certain amount of money on material alterations before triggering the requirement for a unit owner vote.

There is also an exception in the law. If an alteration is considered “necessary maintenance” to the condominium property, the owner vote is not required. Convenience and cost savings are not sufficient legal criteria to support changing the common elements without a unit owner vote based on the necessary maintenance exception to the material alteration rule. On the other hand, changes necessary to comply with the law are generally permitted under the necessary maintenance exception. Use of alternative materials always presents a close question. Generally speaking, decisions in this context should be predicated on both a legal opinion, as well as demonstrable evidence from a credible source (for example, an engineer) that the change is “necessary” as that term is used in the law.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. 

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.

Enforcement Tool Belt – Fining/Suspension

In the proverbial “tool belt” of enforcement options available to an association for violations of the rules and regulations, the imposition of fines and suspensions is one that we frequently get questions about due to the procedures that must be followed.  If the process is not followed properly, it may result in invalidation of the fine or suspension, and can also result in potential legal exposure to the association.

Whether you live in a condominium, cooperative, or homeowners’ association, owners and their guests, tenants and invitees are bound by the association’s governing documents, which may include the declaration, articles of incorporation, bylaws and rules and regulations.  When owners or their guests, tenants or invitees violate the governing documents, associations have certain remedies available to it under Florida law.  In many circumstances, a friendly letter from the community association manager is sufficient to resolve the matter.  In other circumstances, a more formal “notice of violation” will bring an end to continuing violations.  However, in some instances further action is required to enforce a violation.

Florida law for condominiums, cooperatives, and homeowners associations authorizes an association to assess fines and to levy suspensions to enforce the governing documents of a community.  All three types of associations (condominiums, cooperatives, and homeowners associations) have the ability to impose reasonable fines, or to suspend for a reasonable period of time, the right to use common elements, facilities or association property for failure to comply with provisions of the declaration, the bylaws, or rules and regulations of the association.

Sections 718.303 (for condominiums), 719.303 (for cooperatives) and 720.305 (for homeowners’ associations) provide fining and suspension as a remedies available to the association, and also provides the procedures that the association must follow to enforce such remedies.

Generally, the board must appoint an independent committee (often called the fining committee or compliance committee). The committee cannot be comprised of officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If a violation is to be considered for a fine or suspension, the board meets at a duly-noticed meeting, reviews the matter, and “levies” a fine or suspension, if deemed appropriate. After the board levies the fine or issues a suspension, the person to be fined is then entitled to a hearing before the committee. Notice must be received at least 14 days in advance of the hearing. If the association does not hear from the party to be fined or suspended, or the individual does not actually appear at the hearing, the hearing should still be held. At the hearing, the committee must afford basic due process and allow the accused to be heard, state their case, and challenge evidence against them. The committee must then either “confirm” or “reject” the fine or suspension. If the committee rejects the fine or suspension, the matter is over. If the committee confirms the fine or suspension, the board then “imposes” it. After the board has imposed the fine or suspension, a letter should be sent advising of the amount of the fine and the date due.  With regards to a suspension, a letter should be sent advising the length of the suspension.

Originally posted on floridacondohoalawblog.com. Written by Jennifer Horan

Competitive Bidding Explained

Q: My condominium association recently solicited bids for major repairs to our condominium buildings. The cost of the project is several hundred thousand dollars. At the recent board meeting where the contractor was selected, the board discussed all of the bids and voted to proceed with a particular contractor. However, this contractor was not the lowest bid received. When the association must put out contracts for bid, isn’t it obligated to go with the lowest price? (C. J., via e-mail)

A: No. Section 718.3026(1) of the Florida Condominium Act applies to contracts for the purchase of materials or equipment and the provision of services. Any such contract that requires payment of an amount that exceeds five percent of the total annual budget of the association, including reserves, requires competitive bids.

People often ask if three bids are required by the statute. I believe the reference to “competitive” bids means that two bids are sufficient, though there is certainly nothing wrong with getting more. It is important that bids be for the same scope of work, however.

As to your specific question, the statute states that “nothing contained herein shall be construed to require the association to accept the lowest bid.”

It is also important to remember that certain contracts are exempt from the competitive bidding requirements of the statute. Exemptions include contracts for hiring association employees, as well as contracts with accountants, architects, association managers, engineers, landscape architects, and attorneys.

Section 720.3055(1) of the Florida Homeowners’ Association Act contains similar requirements for homeowners’ associations, although the obligation to obtain bids under this statute only arises when the proposed contract exceeds ten percent of the association’s annual budget, including reserves.

As with many issues in community association operations that are regulated by statute, it is also important to remember that the governing documents for an association can impose stricter requirements than regulations contained in the law.

Q: Our condominium has some different factions. I agree with one group and others are part of a second group. I recently ran for the board and lost by only a few votes. Right after the annual meeting, one of the people from the other group, who had not been up for election because she still had one year left on the board, resigned. The rest of the board then appointed one of their supporters to fill that seat. We think I should have been appointed to that seat and that this whole thing was rigged and underhanded. What do you think? (L.S., via e-mail)

A: Condo politics can be as rough as any. Unless there is a very unusual provision in your bylaws, candidates who run for the board but are not elected have no greater claims to vacancies that open up on the board than anyone else.

Section 718.112(2)(d)9 of the Florida Condominium Act states that vacancies occurring on a board are filled by majority vote of the remaining directors, even if they constitute less than a quorum. Vacancies are filled for the unexpired term of the seat being filled, unless otherwise provided in the bylaws.

Q: We just had the annual meeting for our homeowners’ association and I was elected to the board. Our manager said we have to now do an “annual MRTA review” but he was not exactly sure what that was, nor are we. Can you shed any light on this subject? (C.F., via e-mail)

A: MRTA is the common abbreviation used for Florida’s Marketable Record Title Act, which is Chapter 712 of the Florida Statutes. It is a rather complicated real estate statute, but of interest to you, it can extinguish your covenants after 30 years if certain steps are not taken to protect them by certain recordings. The Florida Homeowners’ Association Act was amended in 2018 to require the board of every HOA, at the first meeting of the board each year (excluding the organizational meeting) to review the association’s status under MRTA.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Avoiding Defense of Selective Enforcement

A common defense raised by owners who find themselves on the wrong side of a covenant enforcement action is to allege an association’s failure to enforce the covenant at issue against all violators and instead only selectively enforcing it. The defense of selective enforcement is based upon a case decided by the Supreme Court of Florida in 1979. Essentially, an association cannot enforce the restrictions in the recorded documents or those contained in the rules and regulations in an inconsistent or arbitrary manner.  The issue is addressed by the courts and arbitrators frequently and as explained in Oceanside Plaza Condominium Association, Inc. v. Salussolia: the claim of “selective enforcement will succeed if the failure of the Board to enforce documents in other instances bears sufficient similarity to the case at issue as to warrant the conclusion that to permit the enforcement in the instant case would be discriminatory, unfair, or unequal.”

Nevertheless, even if certain provisions were not uniformly enforced in the past the association is not without options if it determines that such provisions should be enforced going forward. The process for “reviving” a provision that has not been previously enforced is derived from a condominium case called Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Ass’n, Inc. In Chattel Shipping, the association’s declaration of condominium prohibited enclosing balconies without prior association approval. Despite this prohibition, multiple unit owners enclosed their balconies before the association announced its intent to prohibit future balcony enclosures. After the announcement, one unit owner, Chattel Shipping and Investment, Inc., enclosed its balcony and the Association thereafter demanded removal of the enclosure and sought injunctive relief to enforce the restriction. The trial court granted the injunction in favor of the association, and Chattel appealed. Chattel Shipping argued that in light of the association allowing other enclosures in the past, the association’s demand to remove Chattel’s enclosure constituted unequal and arbitrary enforcement of the restriction in violation of the principle of selective enforcement. The court rejected Chattel Shipping’s argument, holding that enforcing a uniform policy, under which a given building restriction will be enforced prospectively is not selective and arbitrary. The court noted that enclosures built before the association made its announcement protected other owners who had built their enclosures in reliance on the status quo, whereas Chattel Shipping had erected its enclosure following the association’s specific notice that subsequent violations would not be tolerated. Ultimately, the court affirmed the trial court’s holding in favor of the association.

Originally posted on floridacondohoalawblog.com. Written by John Stratton

Developments Regarding New Term Limit Law

 Q: In your September column you addressed the new term limit law for condominium association directors.  Have there been any developments regarding this law since your September column was published? T.W.

A: Yes.  The recent amendments to the condominium statute establishing 8-year term limits for directors have raised many questions. As discussed in my September 16, 2018 column, there is a significant legal question as to whether this law should be applied retroactively. Since my September column was published, the Division of Florida Condominiums, Timeshares, and Mobile Homes, the state agency that has certain regulatory oversight over condominiums, has concluded in at least one case that the law does apply retroactively.

Even if the Division’s position is correct (and I personally do not believe that it is), “termed out” directors still have the right to put their name in for election. If there are insufficient candidates to require a contested election, they are entitled to be seated on the board. If there is a contested election, and they receive at least 2/3rds of the votes cast, they are likewise entitled to be seated under the current law.  If they are elected, but not by 2/3rds of the ballots cast, the association will need to make a decision based on advice of legal counsel as to the best course of action to take.

Q: I serve on the Board of a homeowners association.  I travel quite a bit and am often not able to attend the regularly scheduled Board Meetings.  We are getting ready to vote on some very important issues and I want to make sure I get to exercise my vote.  Can I vote through the use of a proxy? J.A.

A: No, Section 720.303(2)(c)3, of the Florida Homeowners’ Association Act specifically prohibits a director from voting via proxy on matters that come before the Board.  Similar prohibitions exist in the Florida Condominium Act and the Florida Cooperative Act, found at Chapters 718 and 719 of the Florida Statutes, respectively.

Q: Is the president of the board only supposed to vote in order to break a tie? S.S.

A: Most community association bylaws require the president to be a director.  Often the president serves as the chairperson of the board of directors’ meetings. As a director the president also participates as a member of the board during board meetings.

Although Robert’s Rules of Order and similar parliamentary guides provides that the chair only votes in the event of a tie, even if the bylaws incorporate Robert’s Rules, state law supersedes the procedural guidance from these manuals.

Under Florida law, directors who are present and attending meetings where action is being taken are presumed to have agreed with such action, unless the director votes against the issue or abstains from voting. So, as a director, the president gets one vote which should be cast on the issue at hand in the same manner as other directors.

In the rare instance where the president is not also a director (I don’t recall ever having seen this), he or she would not be able to cast a tie breaking vote since only directors are permitted to vote.

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.