TC Palm Q&A Column, May 14, 2017

By May 14, 2017News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, 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 trying to amend some of the use restrictions in the declaration of condominium.  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?

BD, Vero Beach

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 amend the governing documents, the owners can’t give him the authority to vote in his own discretion.  Florida Statutes section 718.112 provides “except as specifically otherwise provided herein, unit owners in a residential condominium may not vote by general proxy, but may vote by limited proxies substantially conforming to a limited proxy form adopted by the division.” Thus, because votes to amend the declaration should only be conducted via limited proxies (and votes in person at the meeting), it would not be proper for this disruptive owner to be asking for general proxies.  If he is asking for general proxies, then he is likely wasting his time because the statute expressly requires the use of limited proxies for this type of vote.

Q: Our community has maintained a long standing rule that you must be 18 or older to use the pool unaccompanied, and if you are under the age of 18, you must have a parent with you.  A purchaser with children is claiming this rule is discriminatory.  Is he right?

DH, Jupiter

A: The purchaser is most likely correct.  Fair housing laws prohibit a private condominium or homeowners association from adopting rules that are discriminatory against a protected class.  Here, the rule would prohibit minor children from using the pool without parents, which means the rule discriminates against families with minor children.   This is a protected class of people which means the rule should not be discriminatory or there needs to be a justifiable reason.

The analysis requires more room than this articles provides, but the problem with the rule is that you can be an excellent swimmer and certified by the American Red Cross as a lifeguard at the age of 15 or 16, but unable to use the pool.  Although I agree that, depending on the age, minor children may be more likely to have trouble swimming, the rule in your community may be too restrictive.  

It is also possible that the requirement of parental supervision be too restrictive.  I would recommend you change this to only require supervision of an adult.  

Ultimately, I would recommend you have the rule and the situation analyzed by a licensed Florida attorney as the specific facts and circumstances of your community could change the analysis.    

John C. Goede 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, 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.