TC Palm Q&A Column, August 20, 2017

By August 20, 2017News, Questions & Answers

Q:  HOA environment, limited proxy voting methodology at a special membership meeting to approve special assessment.  HOA governing docs do not address this voting situation.  Can the Board instruct the property manager to produce during a two-week voting window a spread sheet showing how Members had already voted on this controversial proposal?  Can Board instruct the Property Manger to produce during the two-week voting window a print out of which Members had not yet voted?

-R.G, Stuart, FL

A:  The answer to both questions is – yes.  Limited proxies are not secret and may be tabulated as they are received.  The tabulation however would be an official record and any owner would be entitled to obtain a copy of the spread sheet.  Then owners opposing the project could lobby owners who had not yet voted just as the Board apparently did in your case.

Q:  I understand there is a new law related to term limits in a Condominium.  Can you explain it?

-L.B., Jupiter

A:  Yes.  Section 718.112(2)(d)2 of the Condominium Act was changed effective July 1, 2017.  It provides that a board member may not serve more than four consecutive 2 year terms unless approved by 2/3 of the total voting interests or unless there are not enough eligible candidates to fill the vacancies.  The law only applies to condominiums.  One aspect that is unclear is whether or not the law is retroactive to include the consecutive terms served before July 1 or does the 8-year limit begin as of July 1.  Most attorneys believe the law is prospective and therefore the 8-year clock begins as of July 1.  Interestingly the law does not limit the number of consecutive 1 year terms a Director may serve.

Q:  We live in a gated community and are having trouble resolving a problem that we have reported to our Property Management and HOA.  We have neighbors that have large “loaded” coconut trees that are hanging over on to our property and on to our roof. Also, coconuts are being dropped onto our property which could become hazardous if propelled.  The Management Team has sent out letters to Homeowners but nothing seems to be done.  The trees have grown to a point that they are impeding our view and hanging so far on to our property that we cannot enjoy or relax on our deck.  It is the season to cut the trees as it is the beginning of Hurricane season and strong winds or hurricanes could cause major damages or injuries.  My question is:  If we incur roof, personal and/or property damage, does this become a legal matter and who comes responsible for the damages if we sue for damages and/or personal injuries.  Will it be the property owner or the HOA or both to pay for our damages?

-J.M., West Palm Beach

A:  Unless your HOA is responsible for trimming trees on the individual Lots this issue is primarily between you and your neighbor.  The common law in Florida is that if a tree planted on a neighboring lot encroaches onto your lot you can trim the portion of the tree that in encroaches over your property line.  If you have put your neighbor on notice of the potential danger and he fails to trim the tree and it causes damage to your home it is possible that you could make a claim for negligence.  If failing to keep the trees properly trimmed is a violation of the covenants, then your HOA could also seek to impose a fine on the property owner.  Finally, if you are on speaking terms with your neighbor you might also consider speaking to him and see if you can resolve the issue.

Q:  We have a group of owners that call themselves “the Watchdogs”. They have submitted a second records request in a month this time for 3 years of records. Our attorney is present when they go over these documents and our bill to the board to date is close to $2,000.  They have found nothing previously and we don’t anticipate anything being found in this go-round.  I have always been told that the plaintiff bears the burden of proof.  So why should all homeowners be charged for their curiosity?

-R.S.-Vero Beach

A:  Owners have the right to inspect and copy almost all of the official records of the Association.  The Association can impose a per page charge for copies.  The Board can also adopt an official records request policy which can impose reasonable limitations on the number of requests per month and the length of time each inspection can last.  However, beyond that there is nothing that can stop owners who simply enjoy going on fishing exhibitions.  Further, if the Board believes the Association attorney needs to be present then it would have to be at the Association’s expense.