Q: Our condominium Board has 5 Directors serving, but our Bylaws state that the Board is comprised of 7 Directors. The Board is claiming that there are no vacancies, but we are asking the Board to appoint 2 new Directors. Who is right?
A: There are couple questions to address here. First, the Bylaws will dictate the total number of Directors on your Board. I caution that this is very specific to your governing documents and I have read many different provisions on this topic. Some documents are very clear and others, surprisingly, are not clear at all. Assuming your documents do require 7 Directors, there are 2 vacancies. Some clients believe that a “full” Board can be 5 so long as there is an odd number or assuming there were only 5 candidates wanting to serve.
Next, the statutes provide a default mechanism that vacancies on the Board are filled by the remaining Directors. The statutes also allow each community to have a different mechanism. For example, the Bylaws may require a special election or other mechanism to fill the vacancies, so you must carefully review the governing documents to determine the appropriate mechanism to fill vacancies. If the documents require a special election, for example, you would need to notice an election to fill those 2 Director positions.
Q: Our homeowners association has private roads and with sidewalks on each side of the road. The area between the sidewalk and the paved street is covered with sod and includes trees. The association is refusing the mow the grass in this area and claiming the owners are responsible to maintain the trees and their tree roots. Who is responsible?
-B.D., Vero Beach
A: This is a common question and requires some investigation to provide a complete answer. Most importantly, you need to review the plat because the plat provides critical information. The plat includes a roadway which is generally dedicated to the homeowners’ association. What many people do not realize is that the roadway itself is wider than the paved street. The roadway will generally extend to the outer edge of the sidewalk, meaning that the sidewalk is not on your personal lot, but rather the sidewalk is located within the association’s roadway. Your question is not about the sidewalk, but it means that the sod and trees are also probably within the roadway. This is critical because a default rule is that you maintain land that you own, so the Association would have the default obligation to maintain, repair and replace the sod and other improvements within this area. Thus, the first step is to review the plats and other relevant documents to determine who actually owns the land between the sidewalk and the paved street.
Next, I would recommend having your governing documents reviewed by a licensed attorney to determine the contractual obligations. Assuming the plat dedicates this roadway in favor of your homeowners’ association, the declaration of covenants may also allocate responsibility. Some documents will specifically provide that the owner is responsible to maintain landscaping all the way to the paved street irrespective of the width of the platted roadway. If the documents are silent, the Association is most likely responsible. Some documents may also provide that the owner is required to mow the sod, but that the Association is responsible to maintain the trees. I could write a few pages on heaving sidewalks, driveway pavers, and tripping hazards caused by tree roots, but for purposes of this question it is important to know exactly who is responsible to maintain the trees and their roots.