TC Palm Q&A Column, May 28, 2017

By May 28, 2017News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., 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, litigation, estate planning and business law.

Q:   Our condominium association is contemplating re-writing our governing documents.  What are the most important issues that the board should consider?

-H.Y., Boca Raton

A:   If your governing documents (which consist of the Declaration of Condominium, Articles of Incorporation, Bylaws and Rules) have never been rewritten you should consider doing so.  Developer drafted documents often to not “fit” the post-developer community and overtime will become outdated with the laws as they are changed by the Legislature.  Amending and restating your governing documents completely replaces the current documents with new ones.  This accomplishes three major goals.  First, all of the developer language is removed, as it is no longer applicable or relevant.  Second, the documents are updated to the current law.  Third, the restrictions and procedures can be modified to fit the community in 2017 and beyond as opposed to what the developer wrote many years ago.  The third area is the area that you will want to focus on the most as your legal counsel will handle the first two areas without the need for much input from you.  To start the project, I suggest you form a “small” committee of no more than three or four people to begin reviewing the current documents in the area of what I term “the do’s and don’ts”.  Pets, parking and leasing restrictions are usually some of the bigger areas that most communities want to modify.  The committee should not attempt to literally rewrite the provisions but rather make notes to share with legal counsel.  Legal counsel will take those notes and draft appropriate industry standard language.  Once the committee and legal counsel of the association come up with a draft they deem acceptable, it should be shared with the Board and then finally the membership for review and comment.  After the members have had an opportunity to comment, a final draft is prepared, and the members will be asked to vote to approve the documents.

Q:  During our annual board meeting I brought up the problem with cats roaming our condo community.  Other owners also voiced their dissatisfaction.  The board on the other hand did not show any concern about the cat problem.  Our rules concerning this are posted “Animals roaming the property freely may be considered feral and subject to removal.  Please do not leave Pet Food outside.”  The cats are not feral, they are domestic and released by their owners.  One board member even stated we have to “Live and let live”, instead of supporting and upholding our rules. This has been an ongoing problem for a few years.  We even found out that two board members were actually feeding the cats two years ago.   Finally, the board President said they have too many other pressing issues that have be prioritized and removal could be costly and that maybe we the owners should take care of the problem.  One owner whose wife is a board member sent a letter to owners supporting the board and stating the cat problem is not the responsibility of the board.  We have a management company also.

Our board seems to be clueless about its fiduciary responsibilities to the owners and folks who live in our condo community; could you briefly touch on this please?

-J.V., West Palm Beach

A:  Pursuant to the rule you quoted the fact that the cats may be domesticated and owned by someone in the community does not change the fact that if they are “roaming”, which to me means outside, not on a leash and no owner present, they  “may” be considered “feral”.  The use of the word “may” suggests the Board does not have to consider them “feral”.  However, if the original owners of the cats are no longer in the community and the cats are outside all the time, on their own, then I think they definitely should be considered feral and removed.  I would also suggest that the County animal control be notified to see if they can help remove the cats.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC.  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, PLLC 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.