The collapse of the Champlain Towers building has brought renewed interest on structural building integrity to many Condo and HOA Associations.  We are seeing many Associations operating older buildings putting out bidding for new engineering structural review.

Such an engineering study will help insure the soundness of a building’s structural foundation.  However, what about an Association’s legal foundation?  Is the legal foundation sound when an Association is operating under old governing documents designed with the Developer in mind instead of the end users (purchasers) of the units?

Developer documents are drafted to assist the Developer in selling as many units as possible as quickly as possible so that the Developer can cash out and get on to building the next Development.

The Developer typically won’t be living in the project so there is no personal incentive to necessarily make the documents end user friendly. When there is no long term commitment and quick sale is the name of the game, such Developer documents many times will not require approval or disapproval of prospective purchasers or tenants or have well thought out protections to prevent owners from altering their units, homes, common element and limited common elements, or common areas or limited common areas without first obtaining the approval of the Board of Directors or an Architectural Review Committee. Adequate restrictions on pets, vehicles and guests may be non-existent or highly inadequate. These type restrictions may be left out by the Developer’s attorney drafting the documents because of the Developer’s client’s worry that they may inhibit or slow down sales.

If you limit pets or smoking, the Developer may believe sales to pet owners or smokers may be lost.  If you have approval processing of prospective purchasers or tenants, those individual with shaky backgrounds might not apply to purchase or lease.  If you prohibit recreational vehicles, boats or commercial trucks, that’s another group of potential buyers that could be lost.

Another problem with Developer documents is that they won’t necessarily reflect the current laws because the Developer drafter is using an old boiler plate, or many laws have changed since turnover of the project to the owners by the Developer.  The result of this deficiency is that the Board of Directors and Officers may follow what the outdated documents say only to find out later that they are violating current law on the matter as the law could have changed significantly since the documents were written.  This puts the Association in jeopardy of being sued by unhappy or dissident owners.

We get many calls from Association Directors and Officers who have old Developer documents because the documents are many times ambiguous and don’t address important matters adequately or clearly; such as who is to maintain, repair, replace or insure what parts of the units or homes, the limited common elements and the common elements or common areas (Association or Owner?).   This can drive up legal costs to the Associations in addition to the liability exposure to the Board.

The numerous problems trying to operate under old outdated documents can be solved by totally rewriting the Declaration of Condominium or Declaration of Covenants (for HOA’s), Articles of Incorporation and Bylaws of the Association.

The process usually takes from 3 to 9 months with legal counsel working closely with a document rewrite committee consisting of a few committee members with an interest in details involved with such a process.  The attorney will usually prepare the first draft for the committee’s review and input.  After the committee is satisfied with the product, it usually then moves to the board for Directors input and then input from any interested owners.  Finally, a formal proxy vote will be taken from the entire membership.  After approval of the members, any house rules and purchase and sales application forms will be updated to conform to the new documents.

Usually, once an Association has their new well written superior documents, legal counsel calls for opinions will wane with corresponding less to be spent on legal fees.  Although legal fees will have to be incurred for a rewrite, the savings in diminished future legal fees by having a solid legal document foundation for your Association is usually substantial.  In addition, Directors and Officers can sleep well once the Association has new documents that can be relied upon in running the Community.

This is the time of year during Season is when most Condominium Associations have their annual members meeting as well as board meetings.

For some reason we see a scattering of Condominium Association directors who believe these Association meetings are for the directors to talk, argue, and make decisions and the members are there at the meetings just to listen in.  This belief could be coming from directors who are used to the corporate world and procedures used in private corporate meetings.

However, this is not the case in Florida as there are specific statutory “sunshine” provisions allowing for most all Association meetings to be open to the members with the ability for the members to speak at the meeting and to audio or video record them.  Exceptions to open Board meetings are only for meetings of the Board to discuss personnel matters or board meetings with Association legal counsel to discuss proposed or pending litigation matters.  For these two exceptions, the meetings can be closed to the members (executive session).

Concerning annual and special member’s meetings, Section 718.112(2)(d)7., Florida Statutes provides that: “Unit owners have the right to participate in meetings of unit owners with reference to all designated agenda items. However, the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.”

Section 718.112(2)(d)8., Florida Statutes provides that:  “A unit owner may tape record or videotape a meeting of the unit owners subject to reasonable rules adopted by the division.”

For board meetings, Section 718.112(2)(c) provides that:  “Meetings of the board of administration at which a quorum of the members is present are open to all unit owners.  Members of the board of administration may use e-mail as a means of communication but may not cast a vote on a matter vial e-mail.  A unit owner may tape record or videotape the meetings.  The right to attend such meetings includes the right to speak at such meetings with deference to all designated agenda items.  The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting.  The Association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.”

When the statutory section talk about the “Division”, it means the “Division of Florida Condominiums, Timeshares, and Mobile Homes”. The Division has adopted the rules discussed in these Chapter 718 Sections as follows:

61B-23-002(9)&(10), Florida Administrative Code provide: “(9) Subject to reasonable restrictions, any unit owner has the right to speak at unit owner meetings, with respect to all designated agenda items. On or after April 1, 1992, subject to reasonable restrictions, any unit owner has the right to speak at board meetings and committee meetings with respect to all designated agenda items.

(10) Any unit owner may tape record or videotape meetings of the board of administration, committee meetings, or unit owner meetings, subject to the following restrictions:

(a) The only audio and video equipment and devices which unit owners are authorized to utilize at any such meeting is equipment which does not produce distracting sound or light emissions.

(b) If adopted in advance by the board or unit owners as a written rule, audio and video equipment shall be assembled and placed in position in advance of the commencement of the meeting.

(c) If adopted in advance by the board or unit owners as a written rule, anyone videotaping or recording a meeting shall not be permitted to move about the meeting room in order to facilitate the recording.

(d) If adopted in advance by the board or unit owners as a written rule, advance notice shall be given to the board by any unit owner desiring to utilize any audio or video equipment.

(e) Unit owners are entitled to tape record or videotape board meetings and committee meetings occurring on or after April 1, 1992.”

Many Condominium Associations have adopted reasonable written rules govering the frequency, duration, and manner of unit owner participation in members meetings and board meetings and if your Condominium Association has not adopted such written rules it should consider doing so in order to ensure your meetings run smoothly.

Such rules can limit a member speaking to no more than three (3) minutes per agenda item unless the person running the meeting allows for an exception for a member to speak longer.  The Association can limit such speaking to either at the beginning of the meeting, during the agenda topic or at the end of the meeting.  The Association can require a member to sign-up to speak before the meeting begins.

Associations should also consider limiting the member participating to the member making a statement and not asking numerous questions of the board during their speaking time.  A protracted question and answer session with a member during their speaker time can quickly run past the three (3) minute limit wherein the member is hogging meeting time and directors and/or management are being put on the spot to answers questions they may not have good responses for without further research.  If the directors don’t readily know an appropriate response to a member’s question, it should tell the member that the board will take the question under advisement and answer the member at a later time after research or review.

Well, Tuesday will be the day folks will go vote in person for President of the United States. That is for those who did not already vote by absentee ballot.  When the votes are counted anybody who did not vote is not counted at all in determining who will win and be our next President.

However, this is not usually the case if you’re Condominium or Homeowners’ Association has old developer drafted documents that have never been updated.  Most of these old governing documents provide that they can be amended with the approval of either 2/3rds or 75 percent approval of all the members.

This means that if an owner does not return a proxy vote to be counted, their vote will always be counted as a NO vote.  As a result many good amendments that have been well thought out by the Board of Directors will never pass just because of the inherent apathy of many owners when it comes to proxy voting.  When you ask those who did not vote how they would have voted had they done so, the vast majority would have voted to approve the proxy questions!  But because they did not vote, they are counted as a NO vote.

You cannot really blame these owners for such apathy because many believe their vote really does not matter and being busy people they may not want to take the time to read everything and figure out how to cast their proxy vote.  Many who own a lot of stocks receive such proxy solicitations from the companies they own stock in all the time and unless they owner a great percentage of the stock in the company, their vote probably really does not matter so they throw the stock voting package in the circular file.

Unless this apathy condition is broken, when it comes to voting to amend the Association’s governing documents, the Community can get stuck in the stone-age with old documents that no longer reflect current law or current practices in the industry.  This can really hamper the ability of the Community to properly conduct business and legally keep up with the times.

We find it beneficial for many Associations to go get a vote of its members just to bring down the too high voting requirement in their governing documents to a reasonable level so that in the future good amendments can get passed or the governing documents (Declaration of Covenants, Articles of Incorporation and Bylaws) can be rewritten to be up to date with the law and conform with standard modern practices.

  Typically we suggest the voting requirements for amendment should be changed from either 2/3rds or 75 percent of all the members to 2/3rds or 75 percent of “those who actually vote”.  You will still need at least a quorum of the members to send in their proxy vote to have a legal meeting to count the votes. We find that when a proxy voting package is sent out, you get between and 65 to 75 percent of the owners voting.  So, you will then need 2/3rds or 75 percent of somewhere between 65 and 75 percent of the owners. This is a manageable number to get and is still a super majority of the members voting wanting a change.

In order to get the first amendment to bring the vote down, you will probably need to have a get out the vote committee to knock on doors, call neighbors and send e-mails a few days before the meeting to count the votes to make sure you get the initial 2/3rds or 75 percent.

You can open the proxies as they come in to keep a running tally of the vote and then a few days before the meeting you can see how many owners you need to contact to get to the magic approval number.  Owners can e-mail or fax in a signed copy of their proxy which is as good as an original and can be counted.

Just about every planned community in Southwest Florida has governing documents recorded in the public records of the County containing various regulations as well as unrecorded “house rules” that the residents are supposed to follow in order to maintain a community of congenial, financially responsible residents with the objectives of protecting the value of the homes and units, inhibiting transiency, and facilitating the development of a stable, quiet community and peace of mind for all residents.

For some communities however, there are residents who believe for some reason that the rules and regulations do not apply to them.  Some people who are used to living in a home in an unincorporated neighborhood up North are used to doing pretty much whatever they want in their house and on their lot. Such behavior does not transition well to living in gated communities and condominiums in Southwest Florida.

Usually, when this type person fails to follow the rules, such as failing to clean their roof, failing to leash their dog, failing to cut their grass, failing to apply for and register tenants and guests, failing to follow the traffic signs, failing to clean up after themselves on the common areas or, instead of failing to do something, the person decides to break the rules by parking the wrong type vehicle on the property, painting their house the wrong color, bringing pets to no pet buildings, playing loud music or having loud parties at late hours, going to the pool after dark when it is closed or just being obnoxious to fellow residents, the manager or board may call them or send them an e-mail or a letter and kindly ask that they knock it off and start following the rules.

We find that although these “kind” reminders work sometime in obtaining compliance, many times, the violators don’t respect such requests and decided to continue to act like outliers.

This is usually when legal counsel comes in as the board and management are at wits end and need some help in encourage compliance.  We will usually send a last chance “cease and desist” letter to the violating resident and the owner of the property and let them know if their rules and regulations violations do not stop, the Association will bring legal action against them.

The legal action could commence with Arbitration in Condominiums or Pre-Suit Mediation in Homeowners’ Associations or direct legal action in Court depending upon the type violation.

We will let the violator and unit or home owner know that if such legal action becomes necessary, they will be responsible for the Association’s prevailing party attorney’s fees in addition to their own.  Such a letter works much better than a $100 fine as the violator and owner could now be looking at being responsible for thousands of dollars of legal fees if litigation becomes necessary.  At this point, when they see they will probably be responsible for large dollar amounts, most remaining violators will then get in line and comply with the rules.

However, for the few that still don’t see the light and continue to cause trouble, litigation will ensue where damages and injunctions are sought.  If the court issues an injunction telling the violator to start following the rules and the violator still does not comply with the court order, the Judge may well then fine the violator for contempt of court. If violations continue after that, then the Judge may throw the person in jail.

For these difficult people, it is kind of like giving someone an Indian Sunburn.  You have to keep squeezing their arm until they cry uncle.  It can be very costly both in money and time for those who refuse to cry uncle in short order.

 It is a shame that there are such persons living in your communities who refuse to follow societal norms.  Regretfully though, as long as they continue to cause trouble, Associations must use their monies and time as a cost of doing business in covenant enforcement in furtherance of their fiduciary duty to protect all the other good residents in the community.