What is the vote needed to change community’s documents?

By April 8, 2012Articles, News

Q. My HOA board is proposing multiple amendments to our community documents, many of which I do not agree with. What is the vote needed to change our documents? Majority of the membership? Super majority? Does the board have the unilateral right to change the documents? Please explain the process. — R.R.

A. Unless the HOA documents provide a different method or percentage for approval, an HOA in Florida can amend its documents with approval from two-thirds of all homeowners. The board on its own cannot amend the documents. The board’s role is to engage legal counsel to prepare the amended documents and the necessary proxy for a membership vote. A board on its own can adopt new rules and regulations to supplement the governing documents, but those rules must be reasonable and cannot conflict with any provisions in the governing documents. For instance, if the documents provide that a pet may be kept in the home, a board cannot pass a rule unreasonably restricting the owner’s ability to keep a pet.

Q. Our condo board would like to start utilizing the fines and suspensions authorized by the Florida condo laws, but we are not sure how to go about it. We have heard many conflicting opinions on when a “hearing” is needed and how to impose these penalties. Can you please provide some clarity? — D.F.

A. Section 718.303 of the Florida Statutes sets forth the procedure that must be followed. However, the statute has changed recently and is confusing in some ways, which leads to many different practices within condo associations. First, the association has the right to impose daily fines of up to $100 for a continuing violation of the community rules and restrictions. The total fine for each violation cannot exceed $1,000. An unpaid fine cannot become a lien on the condo unit, but it can be collected upon transfer of the unit or in small claims court. Second, the association has the right to suspend the right of an owner (or the owner’s tenants and guests) to use the common facilities for a reasonable period of time. This is normally done by deactivating the member’s access card or key, if your community has that ability. Neither a fine nor a suspension may be enforced without written notice of the penalty and an opportunity for a hearing before a violations committee. The hearing should occur at least 14 days from the issuance of the written notice. Finally, the association can suspend a member’s right to use the common facilities and/or the right to vote if the member is more than 90 days delinquent in paying any monetary obligation owed to the association. A hearing is not required for these suspensions, but the board must approve the suspension at a properly noticed board meeting and provide the member with written notice of the suspension.

Q. A handful of unit owners in my condo association are considering hosting several political rallies at our clubhouse this summer, in preparation for the November elections. I have a problem with our clubhouse being used in this manner. The rallies may deter or restrict the members’ ability to use the clubhouse facilities. Can these unit owners conduct these political events at our clubhouse? — B.D.

A. The Florida Condominium Act affords each member the right to “peaceably assemble” in the common facilities and even the right to invite public officials and candidates to speak at your clubhouse. This right to assemble must be carefully balanced with the rights of other members to use the facilities. Thus, this privilege of assembly is limited by the association’s right to adopt reasonable rules and restrictions for these types of events. Thus, it is probably reasonable for your board to adopt a rule limiting the duration of these events and limiting the number of people who can attend. Further, there is case law in Florida that allows an association to prohibit assembly that will have a “particular divisive effect” on the membership. Thus, if you have reason to believe that the scheduled rallies will cause an unreasonable disturbance in your community, you do have the right to attend a board meeting to voice your concern.

Q. My condo building is undergoing significant repairs. As part of the exterior concrete restoration work, I was asked to temporarily remove the furniture and plants from my balcony. I am not in Florida for another month and the work is starting next week. My furniture was very expensive and I work very hard to take care of my plants. Further, the condo association is not willing to remove and care for my belongings. I am not sure what to do. Can the condo association do this? — D.S.

A. The condo association does have the right and duty to maintain the common elements (including balconies in most cases) and generally has the necessary easements in the condo documents to perform that maintenance. Thus, the association has the right to require unit owners to remove plants and furnishings from the balcony on a temporary basis for maintenance purposes. Further, the association should not assume responsibility for an owner’s belongings. An easement for maintenance allows the association’s contractor to enter the balcony to perform the work, but does not obligate the association to clear the area. The association’s obligation is to notify the unit owner of the upcoming work and provide a reasonable amount of time to clear the area. If the unit owner is absent and cannot clear the area, the owner is responsible for making arrangements to clear the area and secure his or her property. If the association is willing to assist the owner in this regard, we would recommend that the parties sign an appropriate written agreement for the storage and safekeeping of the property.