Names of Unit Week Owners not Available in Timeshare Condominiums

Q:  You recently published an article stating that the names of fellow unit owners are a public record.  Is the rule the same for timeshare condominium associations?

A:  No.  When it comes to providing the names (and other information) of owners of a timeshare, the “rules” are different.  Unlike the Condominium Act (Chapter 718, Florida Statutes) or the Cooperative Act (Chapter 719, Florida Statutes), the Florida Vacation Plan and Timesharing Act (Chapter 721, Florida Statutes) provides that notwithstanding any provision of the Condominium Act or the Cooperative Act, an association may not furnish the name, address, or e-mail address of any owner to any other owner unless the owner whose name, address, or e-mail address is requested first approves such disclosure in writing. It is important to note, however, that even though owners are not entitled to the names and addresses of other owners, they can ask the association to mail materials to the other owners if the purpose of the mailing is to advance legitimate association business, such as soliciting a proxy for any purpose (including the recall of one or more board members or the discharge of the manager or management firm).

Q: Each of our condominium units has one assigned carport to park their car. There are only 20 additional parking spaces for 40 units. We have so many people that have two cars, that at certain times of year, there is nowhere for visitors to park. I only have one car and it seems unfair that I can’t have guests. Is there anything I can ask the management company to do about this? J.T. via email

A: Your board would be the proper party to address this issue, though the management company may be involved in the process. Parking limitations are one of the most common problems at condominiums (especially during the “season” and in older condominiums) and also the most difficult to solve.

For many years, zoning codes required 1.5 parking spaces per dwelling unit, so in many communities it would be mathematically impossible for every owner to have two vehicles parked on the property. Current codes generally require 2 spaces per dwelling unit, plus additional guest and handicap parking.

In a 1981 appeals court case called Juno By the Sea North vs. Manfredonia, the court was confronted with a dispute where the board had to deal with how to allocate 97 parking spaces in a 70 unit condominium. Although the central focus of the litigation was a challenge to the board’s right to assign parking spaces to owners who had not “bought” them from the developer as “limited common elements” (which was upheld) the subject rule appeared to limit each unit to one car with remaining spaces reserved for guest use.

There is no “one size fits all” solution to parking limitations. For example, while a “one car per unit” rule may seem fair to some, would a married couple who both work and have to drive separately think so? Your management company may be able to offer some solutions based on their experience, such as making certain spots “guest only” and implementing some kind of “second car” policy such as a prohibition against second cars with the board having the ability to grant hardship waivers, such as in the example I gave about the working couple. Good luck.

Q: My condominium association has a unit owner who engages in abusive conduct towards the members of the board of directors and other unit owners. Can the association take legal action to force this owner out of the condominium? (N.O., via e-mail)

A: No. There is a 1995 Appeals Court case called Kittel-Glass v. Oceans Four Condominium Association, which held that the Association cannot force a unit owner out of their unit due to document violations. Rather, the remedy would be to obtain an order directing that the owner not engage in conduct which violates the condominium documents.

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

“Vaping” Rules Questioned

Q: We have a few people who “vape” at the swimming pool at our condominium. I complained to one of them once as the fumes were blowing in my direction. They pointed to the “No Smoking” sign posted at the pool and said “there’s no rule against this.” What do you think? (K.G. via e-mail)

A: While your neighbor’s actions certainly seem rude, whether they were (or will be) legally improper is a more complicated question. Generally speaking, restrictions on the free use of property are disfavored in the law, so the rule followed by the courts is that restrictions must be strictly construed.

Although I am not aware of any case precedents on point, I think “vaping” is different than “smoking” in the eyes of the law. However, just because the posted sign only deals with smoking, there may be other written rules that specifically address this issue. If not, you might want to suggest that your board look at updating the rules.

In my view, rules regulating (or even prohibiting) smoking on the commonly used common areas of a condominium would be given great deference by a court as far as the required legal element of “reasonableness.” I also believe that similar rules regulating “vaping” would be given the same treatment by a court.

I would also point out the Florida Clean Indoor Air Act prohibits smoking in indoor places of “work.” As that term is defined in the law, this will usually include the indoor areas of condominium and homeowners’ association common areas, such as meeting rooms and clubhouses. By virtue of an amendment to the Florida Constitution last November, effective July 1, 2019, “vaping” will be given the same status as “smoking” under the Clean Air Act. In other words, regardless of any Board rule on the topic, “vaping” in areas covered by the statute will be a violation of law.

Q: My condominium association is in the process of having its pest control company treat all of the units for insects. However, one unit owner will not give the association access to their unit and is stating that since it is private property, the association has no right to enter. Can the association amend the condominium documents to provide for a right of entry to the units?  (D.P. by e-mail)

A: I doubt that it is necessary for the association to amend its condominium documents regarding the right to enter units. Section 718.111(5)(a) of the Florida Condominium Act provides that the association has an irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.

Assuming that the declaration of condominium provides that the association has the authority to provide for pest control to the condominium property, including the units, the association has legal right to access all units for such purpose. Accordingly, while the association likely has the legal right to access the unit, if an owner is preventing access the association would have to take appropriate action to enforce its rights. There are arbitration decisions issued by the Division of Florida Condominium, Timeshares and Mobile Homes that have found that unit owners may not deny access by the association, nor may unit owners place conditions upon the association’s right of access to units. Therefore, if a unit owner is unreasonably preventing the association from accessing their unit for proper purposes, the association may be forced to take legal action in order to obtain such access. Although your association counsel should be consulted on the proper procedures, many associations also enact requirements for the posting of a key to all units, which has also been upheld by the Division.

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

HOA Board Can Purchase Bulk Cable and Internet

Q: The board of directors of my homeowners’ association is considering a bulk contract for cable television and internet service for our community. The association has never previously provided cable or internet service to the residents. If the contract is signed, all of the owners would be forced to pay for the service as part of their assessments. Is this permissible without a vote of the membership? (E.E., via e-mail)

A: Section 720.309(2), the Florida Homeowners’ Association Act, states that if the governing documents authorize the association to incur the cost of communication services, information services, or internet services obtained under a bulk contract, such expenses shall be deemed an operating expense of the association.

However, even if the governing documents do not provide for these bulk services, the law states that the board can contract for bulk telecommunication services, and the costs of such services shall be an expense of the association. However, if the governing documents do not address such bulk service contracts, the board must allocate the cost of the bulk service on a per parcel basis, rather than on a percentage basis, even if the governing documents contemplate assessments being allocated on a percentage basis rather than a per-parcel basis.

Therefore, the short answer to your question is yes. The board of directors, without a vote of the membership, can enter into a contract for bulk services, even if the association has not historically provided such service. This law was first enacted in 2011, so there may be some room to argue about its retroactive application to communities created prior to that date.

The statute also provides that any such contact may be canceled by a majority vote of the voting interests present at the next regular or special meeting of the members of the association. However, if the vote is not taken at the next membership meeting, the contract is deemed ratified.

Chapter 718, the Florida Condominium Act, contains similar provisions regarding bulk telecommunication service contracts.

Q: Our condominium was originally 7 different associations who went through a “merger” into one condominium. Our biggest association is 48 units, and we have 242 overall. We have gotten conflicting information on whether the new website law applies to us. What do you think? (F.S., via e-mail)

A: It probably does not. A new Section 718.112(2)(g) was first added to the Florida Condominium Act in 2017.

That law required any association “with more than 150 units” to have a website. The law was amended in 2018. Among other changes (including deferring the effective date of the law to January 1, 2019), the statute was amended to apply only to associations managing a condominium with 150 units.

Based on the information you provided, it appears that you have 7 separate condominiums (not associations) operated by one corporation (the association) as the result of a “corporate merger.” Therefore, your association is what is known as a “multi-condominium association.” The new law would not apply to your association because although it operates more than 150 units in the aggregate, no single condominium has 150 units or more.

That does not mean that your association cannot have a website, it can. It does mean that you do not have to comply with all of the technical requirements of the new statute, including some detailed provisions on documents required to be posted on mandatory websites. In addition, if you do have a “voluntary website,” my interpretation of the law is that your “estoppel certificate” (the form people fill out before closings to make sure there are no unpaid maintenance fees) have to be posted on that website.

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

Hoarders Present Difficult Challenges for Association

Q: Our condominium has a “hoarder” whose unit is filled with papers, newspapers, cardboard, plastic bags, and the like. I am worried about fire hazards and vermin infestation. Neither our board nor the manager are willing to do anything about this. Does Florida law provide me with any way to cure this situation? (H.R., via e-mail)

A: One line of inquiry is whether this person is over the age of 60 and/or has a disability; whether his unit is unsafe or unfit for human occupancy; whether he is also neglecting his health and hygiene, pets, and/or dependent children; and whether his failure to maintain the interior of the unit violates the condominium documents. Depending on the answers to these questions, there are several options you or your condominium association have to address this issue.

You or the condominium association may be able to report the unit owner’s self-neglect to the Florida Department of Children and Families (DCF). Florida law generally requires the reporting of known or suspected self-neglect or neglect of vulnerable adults, which include those over the age of 60 and those with disabilities, or children. DCF’s Florida Abuse Hotline receives reports 24 hours a day at 1-800-96-ABUSE or online at https://reportabuse.dcf.state.fl.us.

With the name and address of the unit owner, you or the condominium association can also request that a well-being check be performed by local law enforcement by explaining that there are concerns about the unit owner’s welfare and the habitability of his unit. Local law enforcement staff will then go out to the unit, knock on the door and, if no one answers, inspect what is visible from the outside. Depending on what is observed, local law enforcement may pursue a warrant for entry and to evaluate the unit owner. Further, to the extent the unit owner is over 60 years old or has a disability, or if dependent children reside in the unit, local law enforcement’s Special Victims Unit and/or DCF may also be consulted.

If the unit owner is failing to maintain the unit in a structurally safe and sanitary condition, local code enforcement staff may also be able to intervene. For example, Section 6-211 of the Lee County Land Development Code, incorporates the 1985 Standard Unsafe Building Abatement Code (“SUBAC”) by reference. Section 101.6 of SUBAC outlines maintenance obligations that if unfulfilled make a dwelling unsafe and unfit for human occupancy. To the extent the unit is not being maintained in good working order or in a sanitary condition, there may be a violation of SUBAC and local ordinance on which code enforcement staff can take action.

You or the condominium association could also seek the help and guidance of a local nonprofit organization that specializes in hoarding. While the local Department of Health generally does not have jurisdiction over hoarding or unhealthy conditions inside private residences the United Way of Lee, Hendry, Glades, and Okeechobee Counties, for example, and its social referral service can direct such concerns to the appropriate public or private agency. The United Way of Lee, Hendry, Glades, and Okeechobee Counties can be reached at 239-433-3900.

Condominium documents usually contain a nuisance provision prohibiting owners, lessees, and guests from using a unit in any way that unreasonably disturbs, is detrimental to, or is a nuisance to occupants of other units. This “catch all” language, at a minimum, may provide an opportunity for your condominium association to demand that the unit owner improve the conditions within the unit.

I recommend that you encourage your condominium association to speak with its legal services provider to assess how best to improve the condition of the unit and help the subject unit owner through one or more of these channels.

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

What is “Cumulative Voting” and Is It Permissible?

Q: If the ballot sent to every homeowner states you may vote up to five candidates and no more, can you cast all five votes for just one person and have that ballot counted as five votes versus one vote? (S.D., via e-mail)

A: It depends on the provisions of your homeowners’ association’s governing documents. Your question is whether “cumulative voting” in elections of directors is permissible. Under cumulative voting, each member is provided with one vote for each seat open on the board and may split those votes as he or she sees fit, including casting all votes for only one candidate. Cumulative voting gives a member’s vote more weight than if the homeowners’ association does not allow for cumulative voting.

Section 720.306(9)(a) of the Florida Homeowners’ Association Act generally provides that elections of directors must be in accordance with the governing documents of the association. Section 617.0721(5) of the Florida Not For Profit Corporation Act, which also governs Florida homeowners’ associations, provides that the articles of incorporation or the bylaws may provide for cumulative voting; however, cumulative voting is not permitted unless it is expressly authorized in the articles of incorporation. Therefore, cumulative voting in only permissible in your homeowners’ association if its articles of incorporation specifically authorize same.

As a practical matter, few homeowners’ associations adopt cumulative voting. When considering whether to permit cumulative voting, it is recommended that associations first consult with a qualified and experienced community association attorney to discuss its benefits and challenges.

Q: My condominium unit is in an association that is part of a larger master association. The master association is made up of a number of other condominium associations. A question has arisen as to what law applies to the master association. (J.J., via e-mail)

A: Whether the master association is a condominium association governed by Chapter 718, Florida Statutes, the Florida Condominium Act, depends on whether master association’s membership is composed exclusively of condominium unit owners or their elected representatives. If there are single-family homes or non-condominium property within the master association, then it would not be a condominium association governed by Chapter 718.

Since January 1, 1992, the definition of “association” in Section 718.103(2) has been as follows: “means, in addition to any entity responsible for the operation of common elements owned in undivided shares by unit owners, any entity which operates or maintains other real property in which unit owners have use rights, where membership in the entity is composed exclusively of unit owners or their elected or appointed representatives and is a required condition of unit ownership.” The statute was amended to define an association in this manner following an appellate court decision that addressed when a master association is governed by the Florida Condominium Act.

Following the amendment to the statute, the test as to whether an association is a condominium association is based on this constituency test. Therefore, if all of the members of the master association are condominium unit owners, or their representatives, then the master association is a condominium association governed by Chapter 718.

However, there is a recent court case that held that the amendment to the Florida Condominium Act that changed the definition of “association” in 1992 does not apply to master associations which existed before the revision of the statute. As such, if your master association pre-dates 1992, you would need to consult with your legal services provider to determine if the master association is governed by Chapter 718. However, for master associations created after 1992, the statute would apply.

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

Can a Director Resign for Any Reason?

I have met with many boards over the years and often find that they are tireless volunteers who due to malcontents in the community being unappreciative and rude chose to resign from the Board rather than continue dealing with the drama.  The Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes), which applies to most community associations in Florida, requires resignations to be in writing and delivered to the corporation.  There is no requirement however that the resignation include a reason or justification for the resignation.  Service on a community association board (in addition to often being thankless) is a completely voluntary undertaking. A Director cannot be required to remain in his position for the duration of his term.

 

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

Is This a Conflict?

The board member in a homeowners association just hired the same pool company that is used by the association.  Conflict? Not necessarily.  There are provisions within the Homeowners Association Act which prohibit contracts between an association and a company when one of the board members from the association has a financial interest in the subject company.  There are also restrictions contained within the Homeowners Association Act which prohibit board members from receiving “kickbacks” for awarding contracts on behalf of the association.  That being said, there is no statutory prohibition which would prevent a board member from retaining, for their individual swimming pool, the same pool company which is under contract to clean the community swimming pool, as long as the subject board member is paying the going rate for the service and not receiving a quid pro quo discount as a result of their position on the board.

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. 

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.

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