Q. Our condo association recently started sending out emails asking owners to vote on association matters using a secure electronic consent “form”. Does Chapter 718 of the Florida Statutes require approval from 100 percent of the unit owners before this electronic voting can be used? — W.M.
A. States such as Nevada, Texas, Washington and New Jersey have adopted statutes expressly allowing for electronic voting. Florida has not adopted such a statute. Accordingly, we have advised our clients that “online voting” would only be an option if the membership approves an amendment to your condo documents authorizing an electronic voting method that provides security and confidentiality. Even with such a document amendment, the Florida condominium statute provides for absentee ballot as well as secret ballot and there is still the inner-envelope and outer envelope requirement which makes an “e-ballot” problematic. Finally, because the eballot is not a proxy, there may be an issue with a quorum since many membership decisions take place at a membership meeting where a quorum is present. It is questionable whether there would be a quorum if a significant number of members voted online. As you can see, there are some legal uncertainties, which can possibly be addressed with an amendment to the bylaws that is approved by the members. Your board would also need to consider adopting rules and procedures that would ensure a confidential and secure voting system.
Q. Our HOA turned over from the developer about seven years ago. Recently, we did a title search in connection with a maintenance issue involving our roadways. We discovered that title to the roadways is still in the name of the developer. Is this something we should be concerned about? What is your suggestion? — R.G.
A. This is not a serious concern but it is something that should be cleaned up. Typically, the roads in a private community are dedicated to the homeowners association by plat and by the community documents. The developer, as part of a sloppy turnover, probably never transferred actual fee title ownership of the roads to the association. The actual ownership is not necessarily paramount, as the right and duty to maintain, operate and insure the roads ultimately lies with the association. However, the developer is generally obligated to transfer title to all association property to the association when the members assume control of the Board. Transfer of the real property, which can include the clubhouse, roads, lakes, preserves and other amenities, generally occurs by recording a deed granting title to the homeowners association. If you want to clean this up, you should have your association’s legal counsel contact the developer.
Q. Our community has a problem with overflow parking. In particular, many residents and guests are constantly parking in the street and sidewalk, which I feel causes a safety issue. Our board has not been active on this issue, and has been advised by our association legal counsel that we do not have the authority to regulate parking because our documents are silent on the issue. What have you advised your clients that have similar parking issues? — D.F.
A. Your board probably needs to be more active on this issue. There is a common misconception in many communities that the association cannot regulate parking in driveways, sidewalks or even streets. Compounding the problem is that most HOA documents do not adequately address parking restrictions and the association…s enforcement options. However, your board should not ignore the issue simply because the documents are silent. If you review the plat of your subdivision, it will likely show that the roads and sidewalks are dedicated to the homeowners association. This means that the association has the right and duty to operate and insure these right-of-ways. The plat will even show the width of the area that falls under the association’s responsibility. Make no mistake about it, if there is an accident caused by excessive parking on the streets and sidewalks, the association will be involved in a lawsuit if the plat or documents impose responsibility for these right-ofways. It is recommended that your board consult with an experienced community association attorney who can inspect all of the land records and provide an opinion on your association’s rights and duties.
Q. We are going into the summer months, and our condo board is interested in taking additional measures to prevent water leakage and resulting damage. We have heard that failure to maintain air-conditioning units can result in significant damage. Do you have any advice on how to better protect our condominium property? — M.S.
A. In the event of water leaks, the damage behind the walls and between the floors is the association…s responsibility. We have handled many of these cases, many of which involve associations that fail to adopt loss prevention measures. There can be many causes of a leak, but a clogged air-conditioning drain can cause loss of cooling and water damage. Condensation that fails to make it through a clogged drain may spill into an overflow pan that uses a sensor switch to turn off the system to prevent leak damage. As a result, condensation may overflow into the building, causing water damage and mold contamination. Your condo insurance agent can likely recommend some loss control measures. We talked to Gary Eskin, Risk Manager with Insurance & Risk Management Services Inc. in Naples. Eskin recommends the following measures to prevent air-conditioning related losses:
- Require residents to install an overflow pan beneath their air handler to catch overflow.
- Implement a plan to inspect all HVAC equipment, drain pans and hoses on a quarterly basis.
- Require residents to purchase a HVAC maintenance contract or purchase it for them.
- Require residents to set their thermostats between 76 and 80 degrees when they are away.
- Implement a plan to perform scheduled inspections of units when residents are away.
Q. My HOA was formed in the early 1990s. At that time, there were Articles of Incorporation filed with the State of Florida for the purpose of forming an HOA that would operate the community and enforce the restrictive covenants. The following year, a Declaration of Restrictive Covenants was filed in the county land records. The subdivision was platted for 67 lots, but only 34 of the homeowners signed and agreed to the Declaration. Further, the Declaration requires the homeowners to be members of a homeowners association, but the name of that association does not match the name stated in the Articles filed with the State. Does the discrepancy between the Declaration and Articles make the restrictive covenants unenforceable? If not, are the covenants binding only against the 34 homeowners who originally agreed to them? — K.P.
A. This is an unusual case in many aspects. First, it is likely that the organizers of your association intended to include the homes in your community when the Articles and Declaration were created and filed. However, the timing of the document filings is atypical, as the original community documents are usually prepared and filed simultaneously by the developer. That being said, it is possible for homeowners to form a community association after initial development, but the individual homeowners each need to agree on the restrictive covenants. Homeowners who do not consent to these restrictions after the date of original purchase and closing are not bound by the restrictions. As to the first question, it is not likely that the covenants are unenforceable because of the apparent error regarding in the name(s) of the association. Provided that the drafters of the Articles and Declaration intended to subject the same homesites to the association…s restrictions, this is likely a “scrivener’s error” that can be fixed with an amendment to the documents.