Boca Daily News Q&A Column, August 1, 2017

By August 1, 2017News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

Q: Our condominium membership petitioned the Board to pursue an amendment to the Declaration of Condominium.  The Board had the amendment language drafted and circulated a proxy to the membership, but the proxy includes witness signature lines.  A number of owners have not submitted a proxy because of the hassle of finding witnesses.  Are witnesses required for a proxy?

A.B., Boca Raton

A: The applicable statute is section 718.112(2)(b) and provides that “unit owners in a residential condominium may not vote by general proxy, but may vote by limited proxies substantially conforming to a limited proxy form adopted by the division.”  The reference to the “division” is to the Florida Division of Florida Condominiums, Timeshares, and Mobile Homes and the proxy adopted by the Division does not require witnesses.  The form may be obtained by writing the Division at 1940 North Monroe Street, Tallahassee, Florida 32399-1030 or may be downloaded at http://www.myflorida.com/dbpr/lsc/LSCMHCondominiumForms.html.  So the question comes down to whether a witness requirement by your condominium is “substantial conformance” to the proxy form adopted by the Division which does not require witness signatures.   My position is that witnesses are not permissible because it would frustrate the right to vote and signature authenticity is already provided for by using voting certificates.  If the condominium is concerned that an individual would forge a proxy, then the condominium should use voting certificates in order to have signatures on file of the respective owners.  

Q: My neighbors just installed solar panels and the panels are an eyesore and visible from the street.  I thought the homeowners association prohibited solar panels on the front of the home but the response has been that the Board had no choice.  How is this possible?

K.T., Fort Pierce

A: A homeowners association is permitted to adopt restrictions on the placement of solar panels, but the Florida legislature has adopted various statutes intended to promote the use of solar energy above the association’s right to restrict the location.  Specifically, Florida Statutes section 163.04 provides that covenants “may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels” subject to the covenants.  Further, the statute provides that the Association may determine the specific location where the panels may be installed, such as on the roof within an orientation to the south or within 45° east or west of due south, but that right of review is only applicable if it does not impair the effective operation of the solar collectors.  In other words, the association may not prohibit solar panels in the community and the association’s role is limited to requiring specific placement.  In your situation, the Association may be enforcing its covenants but if the preferred location on the roof “impairs the effective operation of the solar collectors” then the Association may have been required to grant an exception to its covenants.

Q: It is common knowledge that our Board of Directors is pursuing substantial amendments to our homeowners association documents and that they are drafting and revising the amendments this summer with the intention of voting when the residents return to Naples.  Are we entitled to attend these meetings and provide input?

C.M., West Palm Beach

A: The answer depends on the bylaws and composition of the group drafting the documents.  If a quorum of the Board is routinely meeting to discuss the amendments and revisions, then you are entitled to attend and speak on each agenda item.  If a quorum of the Board is meeting, it is a Board meeting even if the purpose is solely to discuss possible amendments and revisions.  If a committee of community members are meeting to discuss possible amendments and revisions and a quorum of the Board is not attending, it depends on whether the association’s bylaws exempt committees from posting notice and holding open meetings.  Chapter 720 governing homeowners associations would not specifically require this type of a committee to hold noticed and open meetings, but your association bylaws may self-impose a requirement that all committees hold noticed and open meetings.   Note that the analysis concerning condominium committee meetings is slightly different.  In my experience, the initial draft of an amendment should avoid having too many cooks in the kitchen because it can be impossible to propose a completed draft.  That being said, most communities will circulate the proposed amendments to the membership well in advance of the vote and possibly hold a town hall meeting or other gathering to seek input and to answer questions.  I have seen many revisions come out of town hall meetings and they can potentially be very helpful.  Alternatively, if you are not provided such an opportunity and you oppose the amendments, you would always have the right to vote against the amendments.

Ronald E. D’Anna, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, 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.