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: What are the statute requirements for a thousand member HOA to make known to owners the time and place of committee meetings?
A: The answer to this question is not dependent on the size of the community but rather the Florida HOA Statute and the Association’s Bylaws.
For HOA’s: Florida Statute 720.303 (2) provides the Board meeting notice requirements. Those requirements are posted notice and sometimes mailed notice. The right of owners to attend most Board meetings and the right to speak on agenda items. Those same requirements apply to committees as follows:
720.303(2) “the meetings of any committee or other similar body, when a final decision will be made regarding the expenditure of association funds, and to any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.”
So only committees that have the power to make ARC decisions or final decisions regarding spending Association funds. All other committees meetings do not have to be noticed unless the Bylaws required it.
For Condominiums: Florida Statute 718.112(c) provides the Board meeting Notice requirements. It also provides in part the following:
“Meetings of a committee to take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to the provisions of this paragraph. Meetings of a committee that does not take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to the provisions of this section, unless those meetings are exempted from this section by the bylaws of the association.”
So, for Condos if the committee makes budget recommendations or that takes final action it must be noticed just like a Board meeting. All other committees do not have to be noticed IF the Bylaws exempt them. You need to check the Condo Bylaws to see if other committees are exempted from the notice requirements.
Q: Our condo board took it upon themselves to rebuild and expand size of common tiki hut after Hurricane Irma without member vote to do so. It was more than 50% destroyed. Was that not a violation of condo act?
A: Maybe. Increasing the size of the tiki hut would be considered a material alteration of the common elements. The Condominium Act provides that material alterations of the common elements must be approved by 75% of the total voting interests unless the Declaration provides otherwise. So, if your Declaration of Condominium is silent on the issue the enlargement would have required approval of 75% of all unit owners. However, it is quite possible your Declaration allows the Board to make such decisions without an owner vote.
Q: We had a tie in our condominium election for Directors. How do we break the tie?
A: First I always encourage the tied candidates to agree that one will withdraw or flip a coin to determine the winner. This saves time and money. In the absence of this however the Florida Administrative Code which governs Condominiums in addition to Chapter 718 Florida Statutes prescribes the method for breaking elections ties. It provides that within seven (7) days of the date of the election at which the tie vote occurred the board shall mail or personally deliver to the voters, a notice of a runoff election. The notice shall inform the voters of the date scheduled for the runoff election to occur, shall include a ballot, and shall include copies of any candidate information sheets which were previously submitted by the candidates (the candidates cannot alter or revise their information sheets for purposes of the runoff). The runoff election must be held not less than twenty-one (21) days, but not more than thirty (30) days, after the date of the election at which the tie vote occurred.
Q: One of our Association Board members, is using his out of state lawyer to review everything that is happening with the association, including reviewing the property manager’s contract. The Board member submitted his lawyer’s bill to the Association for reimbursement. The rest of the board politely declined to pick up the cost. Question: Can a Board member use their personal lawyer to review association business or is that a violation of any duties of the Board member to the Association? And if the Board member can use their personal lawyer, does it matter that said lawyer is an out of state lawyer who doesn’t know Florida condo law?
A: If a Board member wants to use his or her personal lawyer, whether in State or out of State, to review Association matters it is his or her prerogative to do so as long as the information is not attorney client privileged. However, the Association is not in any way obligated to by the legal fees. A Board member’s personal attorney’s duty of loyalty is to his client which in this case is the individual Board member not the Association. Moreover, the Board cannot rely on the advice of a lawyer not licensed in the State of Florida in lieu of the advice of a Florida licensed lawyer. Finally, a lawyer not licensed in Florida giving advice on Florida law must be very careful to avoid an allegation of practicing law in Florida without a license.
Q: Late fees – Our management company charges late fees once per assessment installment whenever an assessment payment is late (after the 10th in our case). When the matter is turned over to an outside collection agency it charges the late fee every month once they get the case, so there is always an inconsistency in those cases. Our Declaration calls for a $25 late fee charge. However, FS 720.3085(3)(a) appears to state that the late fee should be assessed per installment and not per month. So, we believe FS 720 controls in this case Do you agree? Any other comments?
A: Yes, I agree. For example, if the January 1 payment is late you may charge $25 but in February when the January installment has still not been paid you do not charge another $25. However, if the installments are due monthly if the February installment is not paid you can charge one late fee for February and so on and so forth.
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: firstname.lastname@example.org. 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.