Naples Daily News Q&A Column, May 14, 2017

By May 14, 2017News, Questions & Answers

Q: Our Bylaws provide that the amendments can be passed by a majority of the Board of Directors. I was always told that the membership needs to vote to amend governing documents. Is this valid?

-R.D., Naples

A: Yes, it is less common, but permissible. The Bylaws generally control how the corporation operates and generally discusses voting procedures, quorum requirements, proxy provisions, notice requirements, and other relevant provisions. The Bylaws are also lower in priority than your declaration of covenants and the articles of incorporation, so it is reasonable and common for the Bylaws to be easier than other documents to amend. If your Bylaws were silent on the amendment threshold (and your question indicates they are not silent), then the statute provides a default approval threshold of two-thirds of the voting interests to amend the Bylaws. Here, your Bylaws apparently provide that the Board alone can amend the Bylaws and this is permissible. It would not, however, be appropriate for the Board to amend the Bylaws and include a provision which is contradictory to a right included in either the declaration or the articles because those documents would have priority in the event of a conflict. For example, if the Declaration allows owners to keep 2 dogs, the Board could not amend the Bylaws to restrict owners to 1 dog.

Q: My neighbor keeps a junk car in his garage and the garage door is always left open. The car is on blocks and the car is visible almost all hours of the day because the door is always open. Our documents have some language addressing vehicles, but do not specifically address vehicles stored in the garage. What can the Board do to fix this eyesore?

 -K.G., Bonita Springs

A: There are two possible solutions. The first is to determine whether the documents address the garage door. If the vehicle is inoperable and the door is closed, the problem should be mitigated. I have seen many governing documents requiring the garage door to be kept closed at all times except for ingress and egress. If your documents contain such language, this would be an efficient mechanism to resolve the eyesore. It is difficult to enforce because owners will inevitable keep the door open for yard work or other needs, but it is an option. The other problem here is that I have also seen documents with ambiguous language providing that doors “should” (as opposed to must) be closed and I have seen documents providing a very wide range of opportunities to keep the door open.

The second solution requires a detailed analysis of the existing vehicle covenants. Some documents prohibit inoperable vehicles from being kept in the entire community, and others only prohibit inoperable vehicles from being parked in the driveway.

Thus, I would recommend having your governing documents analyzed by an experience Florida attorney to review the covenants and provide you with an opinion on your specific options.

Q: Our condominium association is trying to pass a resolution to underfund the reserves. A disruptive owner is going door to door and asking for proxies and telling owners to “trust his judgment” and asking the owners to let him vote on their behalf. I was told that proxies are not discretionary. Can he do this? 

-B.D., Naples

A: A proxy is not a vote, it is the right to vote on behalf of someone else.   There are also two types of proxies: general proxies and limited proxies. A general proxy actually gives the appointed proxy holder the right to exercise his or her own discretion on a vote. A limited proxy is more of an absentee ballot whereby the appointed proxy holder must vote exactly as you instructed with no discretion. With limited proxies, if you vote “in favor”, the proxy holder must vote “in favor”.

So although this owner can have his neighbors appoint him as their proxy holder for a vote to waive or reduce reserves, the owners can’t give him the authority to vote in his own discretion. Florida Statutes section 718.112 specifically provides “reserves may be waived or reduced only upon the vote of a majority of all nondeveloper voting interests voting in person or by limited proxy at a duly called meeting of the association.” Thus, because the statute expressly requires a limited proxy (or votes in person) to waive or reduce reserves, a general proxy is not permitted.

Q: Every Sunday afternoon I see a few of the Directors in my condominium walking through the neighborhood. They appear to be looking for violations and discussing the state of landscaping. Our Board has a total of 5 Directors and I routinely see 3 or 4 of the Directors on this weekly walk. Isn’t that prohibited?

-D.R., Marco Island

A: Florida law requires meetings of the Board be noticed with at least 48 hours’ notice and, in most instances, open to the membership. A Board meeting occurs when at least a quorum of the Board is together conducting business. So, if you have a Board of 5 Directors, and 3 Directors are walking the property and discussing landscaping, that is a Board meeting. Even if the Directors are not voting, it is a meeting that requires at least 48 hours’ notice and there is no exception in Florida law to exclude the membership.

I have a few communities that have a standing notice for the “landscape walk” so that all owners are aware that the landscape walk occurs every Sunday evening. I also have some communities that send 1 or 2 Directors on the walk so that a quorum is never together conducting business.   I have also heard the argument that this type of meeting is not required to be noticed and open because it is just an effort to gather information and that no voting will occur. This does not meet the intent of the statute and these meetings should be noticed and open to the membership if a quorum is conducting business.