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Implementing Condominium Restrictions

Couple preparing to sign a contract. (iStock)

Published November 5, 2023

When faced with a reoccurring issue in a condominium, the Board of the Directors may want to consider implementing a restriction as a long term solution to the problem. For example, after increasing complaints of loud music at late hours, the Board of Directors may consider a restriction as to when and to what extent music can be played at the condominium. Or, perhaps unit owners have complained of the increase in short term rentals in the condominium, prompting the Board of Directors to consider a restriction on the amount of times a unit may be rented throughout the year. How are such restrictions implemented?

Condominiums are primarily governed by Florida Statutes, the condominium’s governing documents (declaration, by-laws, articles of incorporation), and their rules and regulations. Generally, declarations supersede all other governing documents. Thus, when considering restrictions, the Board of Directors are often faced with the choice of either implementing restrictions via either an amendment to the declaration requiring a unit owner vote, or revising the rules and regulations, which generally can be accomplished by the Board of Directors. But which is the right choice? As always, it depends.

One the one hand, if there is a high risk of a unit owner challenging a restriction, the Board of Directors may want to consider implementing a restriction via an amendment to the declaration, as Florida courts are more likely to enforce such restrictions. Indeed, such restrictions are presumed to be valid and enforceable unless and until they are shown to be “arbitrary” or “capricious”. Some Florida courts have even opined that “unreasonable” restrictions in a declaration may be enforced, so long as they are not “arbitrary” or “capricious”.

On the other hand, if a restriction is implemented via an amendment to the rules and regulations of the condominium, it is subject to much more scrutiny if challenged. To be enforceable in the face of challenge, the rule must not contradict any express right or reasonably inferred right conferred to owners in the declaration of condominium. Second, the rule must be shown to be reasonable, which means the rule must be reasonably related to the promoting the health, safety, and welfare of the unit owners, as well as be applied and enforced uniformly.

With that said, amendments to the declaration are often much more difficult and costly to pursue than amendments to the rules and regulations. While every condominium’s governing documents are different, amendments to a declaration generally require at least a majority vote of unit owners in favor of the amendment. Some governing documents may even require a vote by a super majority of unit owners. Thus, implementing a restriction via amendment to the declaration will likely require considerable efforts to galvanize support among unit owners. Furthermore, once a restriction is incorporated into your declaration via an amendment, it will be just as difficult and costly to amend the restriction in the future. As such, restrictions that deal with issues that require flexibility, such as the operating hours of a pool, may be better suited for a rule, which generally only requires a vote by the Board of Directors.

But that is not the end of the matter. The Board of Director’s decision to either amend the declaration or the rules and regulations might be also influenced by Florida Statutes.

For example, Fla. Stat. § 718.110(13) expressly limits amendments relating to rentals as follows:

In addition, per Fla. Stat. 718.112(2)(a)(1), changes to rules, or implementing rules that affect unit use, require a 14 days’ notice to the owners of the Board meeting where such rule will be considered and put to a Board member vote.

(13) An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.

Ultimately, regardless of whether the Board of Directors is leaning towards amending the declaration or the rules of regulations, you should always consult legal counsel, as the decision is a complex one that requires the consideration of multiple factors and issues.

Nico Jimenez

Attorney at Law, BeckerMiami | bio

So, You Received a Written Inquiry

Published July 24, 2023

So, your community association received correspondence that requests answers to certain questions. You may have just received what is also referred to as a “written inquiry.” What to do?

First and foremost, you should always ensure that the Board of Directors and legal counsel of your community association are promptly advised of the receipt of a written inquiry. As explained in this article, receipt of a written inquiry can trigger time sensitive legal obligations that can expose the community association to penalties.

If your community association is a condominium association, you should refer to Chapter 718 of Florida Statutes, which is also known as the “Condominium Act” and which governs condominium associations in Florida. Specifically, Fla. Stat. § 718.112(2)(a)(2) provides as follows:

2. When a unit owner of a residential condominium files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days after receipt of the inquiry. The board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the board requests advice from the division, the board shall, within 10 days after its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. The failure to provide a substantive response to the inquiry as provided herein precludes the board from recovering attorney fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry. The association may through its board of administration adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries, one of which may be that the association is only obligated to respond to one written inquiry per unit in any given 30-day period. In such a case, any additional inquiry or inquiries must be responded to in the subsequent 30-day period, or periods, as applicable.

Based on the foregoing, the applicability of Fla. Stat. § 718.112(2)(a)(2) and your statutory obligation to respond to a written inquiry in accordance with the procedures therein may depend on a number of factors such as, whether the recipient of the written inquiry is a residential condominium, whether the written inquiry was sent by a unit owner, and whether the written inquiry was sent “by certified mail”. If you answered “yes” to all of the foregoing, Fla. Stat. § 718.112(2)(a)(2) may apply to your written inquiry and you may be statutorily obligated to respond to same in accordance with said statute.

If your community association is a Cooperative, you should refer to Chapter 719 of Florida Statutes, which is also known as the “Cooperative Act” and which governs the cooperatives of Florida. The Cooperative Act contains a similar provision to that of the Condominium Act, Fla. Stat. § 719.106(1)(a)(3), which provides as follows:

3. When a unit owner files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days of receipt of the inquiry. The board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the board requests advice from the division, the board shall, within 10 days of its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquirer. The failure to provide a substantive response to the inquirer as provided herein precludes the board from recovering attorney’s fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry. The association may, through its board of administration, adopt reasonable rules and regulations regarding the frequency and manner of responding to the unit owners’ inquiries, one of which may be that the association is obligated to respond to only one written inquiry per unit in any given 30-day period. In such case, any additional inquiry or inquiries must be responded to in the subsequent 30-day period, or periods, as applicable.

The same analysis for condominiums above would apply to the analysis for a written inquiry received by a cooperative.

On the other hand, if your community association is a homeowners’ association, unlike condominium associations and cooperatives, you cannot depend on the applicable statutes for guidance. Chapter 720 of Florida Statutes, which is also known as the “Homeowners’ Association Act” and which governs Florida homeowners’ associations, contains no provisions regarding written inquiries. So, you may conclude that you are not required to respond to the written inquiry you received.

However, that is not the end of the matter. Regardless of whether you are a condominium association, a cooperative, or a homeowners’ association, you should always consult the Governing Documents of your community association regarding written inquiries. Governing Documents may contain their own requirements and procedures regarding the receipt of written inquiries, even in a homeowners’ association that is not statutorily required to respond to same.

Furthermore, your community association should consider responding to a written inquiry even if not legally required. Written inquiries may be a chance for the association to proactively respond to and address a unit owner issue at an early stage and before any sort of escalation.

You should always consult legal counsel with respect to a written inquiry so as to ensure compliance with Florida law and that your community association’s interests are well served. Written inquiries addressed to a community association may contain requests that may fall within the scope of statutes not addressed in this article or which otherwise may require attention, such as requests to inspect records or a demand for pre-suit mediation.

As always, if you have any questions regarding the above, please consult with your legal counsel.

Nico Jimenez

Attorney at Law, Becker
Miami | bio

Simplifying Official Records Inspections for both the Association and the Owners

Published May 23, 2023

Condominium associations, cooperatives, and homeowners’ associations are all required to maintain and make available to owners official records of the association. The respective statutes governing each type of association contain a list of records that must be maintained by the association, as well as a catch-all provision for “all other written records of the association.” Association counsel should be consulted if the Board has any doubt about whether something constitutes an official written record of the association that needs to be maintained and/or be subject to inspection. Although the requirement may seem simple enough, issues arise, for example, distinguishing between association emails and those that belong to a director as an individual.

Association records must be kept either for one year, seven years, or permanently, which is also set forth in the respective statutes for each type of association. For example, a copy of the developer’s plans, permits, warranties, other items; a copy of the recorded declaration of condominium and all amendments; a copy of the recorded bylaws and all amendments; a certified copy of the articles of incorporation and each amendment; a copy of the current rules; and a book contains all meeting minutes, both board and member meetings, must all be kept permanently. Meanwhile, bids for work to be performed or for materials, equipment or services, as well as all records from an elections (e.g., ballots, sign-in sheets, proxies, etc.) must be maintained for one year. Everything else that is considered an official record of the association must be maintained for at least seven years.

Good record keeping is important of any corporation. For associations, it is also important because the official records are open to inspection by any association member or their authorized representative and must be made available within ten working days after receipt of a written request. Finding minutes from ten years ago is much easier if the records are well-organized. There are a number of ways the association may make the records available for inspection. The association may have the records available to the owner on site by having the owner come to the association office or a conference room. The records can be in physical printed form, however, if the association has digitalized its official records, the owner has the option, at their discretion, to review the records in electronic format on a computer screen. If the association so chooses, it may e-mail them. However, a common misconception is that the association is required to send or e-mail records to the requesting owner. The association is not obligated to send the records, only to make them available for inspection. The association may be more liberal with its policy and send out records, but it is not a statutory obligation. The right to inspect the records also includes the right to make or obtain copies, at the owner’s reasonable expense. A unit owner may make a photocopy with his or her cellphone. In such an instance, the association could not charge for the copies.

Another issue with disorganized records is that certain records are not accessible to unit owners and need to be excluded from the inspection. For example, records protected by the lawyer-client privilege and personnel records of association or management company employees are two types of records that unit owners cannot access. If the association is allowing an owner to come to the office to inspect requested records by sifting through a file cabinet or boxes, an association representative needs to ensure that those excluded records are removed from the file or box. Again, a well-maintained record keeping system makes this much easier.

In addition to a good record-keeping system, the association should consult with counsel to set up a written policy for the handling of inspection requests. The statute specifies that the association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The association, however, cannot require a member to demonstrate a purpose or state a reason for requesting to inspect certain records. Setting forth a written policy allows the association to fulfill the requests in the statutorily required time frame without such requests disrupting the operation of the association office or interfering with the other duties of association staff or the board itself. Such a policy can address the many issues that arise during these inspection requests. For example, does the association have a rule as to how owners need to request records? If not, is an e-mail sufficient? Is a verbal request sufficient? Or, for those requests that consist of a significant number of records, the association may want to include a rule for a reasonable amount of time per day the owner can spend inspecting the records. Without a written formal policy, the association cannot enforce restrictions regarding access to records.

Consulting with counsel to put together a written policy for official records inspection can significantly simplify this statutory obligation for the Board, management and/or association employees, as well as protect the Association from owner claims of non-compliance. Owners are also better served by having a clear written policy of how to make their inspection requests and how their requests will be fulfilled.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Can the Directors and Members of Your Community Association Meet and Vote Remotely?

Published April 24, 2023

During the COVID-19 pandemic, people and businesses alike struggled to meet, organize, and otherwise conduct business in person due to quarantine measures and social distancing policies. In light of these challenges, in 2021, the Florida Legislature enacted laws to make clear that, during a state of emergency, condominium, cooperatives, and homeowners’ associations are authorized to conduct board meetings, committee meetings, elections, and members meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication. As a result, many community associations have become accustomed to remote functionality and utilizing popular real-time video conferencing software such as “Zoom” for the purposes of organizing meetings of members and Directors alike. However, now that the pandemic state of emergency has come and gone, can the Directors and members of your community association continue to meet and vote via Zoom or similar remote methods?

In today’s internet age, there are countless reasons that your community association may benefit from authorizing remote access to the meetings of Directors and members. In fact, the availability of remote access alone tends to lead to, at the very least, a positive feeling of increased transparency among the community, due to the ease in which the ongoings of the association can be broadcast and discussed. For the same reason, remote access may also benefit communities that often struggle to obtain the participation of “snowbirds,” or unit owners that only reside in Florida part time. In addition, access software such as Zoom can aid property managers and Directors to control the presentation and flow of a meeting. Furthermore, remote access may reduce traditional expenses associated with in-person meetings, such as travel time for attorneys.

Florida Statutes do provide ways in which Directors and members of a community association may meet and vote remotely in the course of ordinary business. The primary laws that govern condominium, cooperatives, and homeowners’ associations, Chapters 718, 719, and 720 of Florida Statutes, expressly provide that Directors attending a meeting remotely not only count towards a quorum, but may also vote as if physically present, subject to a few requirements in regard to their remote attendance.

Specifically, Fla. Stat. § 718.112(2)(B)(5), governing condominium associations, provides as follows:

5. A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.

Likewise, Fla. Stat. § 719.106(b)(5), governing Cooperatives, provides that:

5. A board member or committee member participating in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person, as well as by any unit owners present at a meeting.

Similarly, Fla. Stat. § 617.0820(4), governing Homeowners’ associations, provides that:

(4) Unless the articles of incorporation or the bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.

The foregoing provisions do not apply to the members of the community associations; they only apply to association board members. Nevertheless, Chapter 617, Florida Statutes, the Florida Not For Profit Corporation Act, which includes condominiums, cooperatives, and homeowners’ associations, provides that members attending meetings remotely may be counted for quorum and voting purposes, subject to certain requirements. Specifically, Fla. Stat. § 617.0721(3) provides as follows:

(3) If authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication:

(a) Participate in the meeting.

(b) Be deemed to be present in person and vote at the meeting if:

1. The corporation implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and

2. The corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings.

If any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with s. 617.1601.

Notwithstanding the above, community associations should be aware that the forgoing provisions do not authorize remote only meetings in all instances. Community associations should always try to provide a physical location for meetings so that those individuals who are unable to attend meetings remotely, or otherwise wish to attend in person, can do so. Florida law is clear that, absent a few narrow exceptions, the meetings of Directors and members must be open to all members.

Furthermore, the foregoing provisions do not apply to all meetings or instances where business of the community will be conducted. For example, election of Condominium and Cooperative Directors cannot be processed remotely. Among other reasons, Florida law is clear that the votes submitted for such Directors must be processed and counted by an “impartial committee” in the “presence” of unit owners during the annual meeting and elections of the community association. While these same requirements are not found in Chapter 720, Florida Statutes, in regard to election of homeowner association Directors, from a practical point of view it is very difficult, if not impossible, to conduct elections with nominations from the floor and the counting of physical ballots.

Lastly, because community associations are also governed by their respective Governing Documents, always consult with your attorney to determine if, and to what extent, the community association’s Governing Documents allow remote participation in meetings. Governing Documents that were drafted fifty years ago may not even address the issue. On the other hand, Governing Documents may expressly require that members or Directors may only participate and vote in meetings via proxy or in person. To the extent that Governing Documents conflict with the foregoing Florida Statutes, your community association may need to amend its Governing Documents, or take other actions, to ensure that remote meetings can be held in full compliance with Florida law.

As always, if you have any questions regarding the above, the Association should consult with its legal counsel.

Nicolas M. Jimenez

Attorney at Law, Becker
Miami | bio

Community Association Budgeting in the “Sunshine”

Published March 29, 2023

“Sunshine” laws require transparency and disclosure in government and business. Community associations have their own of “sunshine” requirements. Are there any “sunshine” requirements for the budgeting process? In other words, what parts of the budget process must community boards ensure to make open, available, or transparent to community members?

What notice is required?

Board meetings at which the budget is being considered must be open to all members. In condominium associations and cooperatives, meetings of committees that make recommendations to the board regarding the association budget must be open to all members. For homeowners’ associations, the requirement is for meetings of any committee when a final decision will be made regarding the expenditure of the association funds. Because these meetings must be open to the members, there are certainly notice requirements.

In condominium associations and cooperatives, the board must notify members of any meeting at which the proposed budget will be considered at least fourteen days prior to the meeting by hand delivery, mail, or electronic transmission. The notice must include the date, time, and location of the budget meeting, and last, but definitely not least, a copy of the proposed budget must be sent with the notice. This includes electronic transmission of the notice of the budget meeting, which shall only be effective if a copy of the proposed annual budget accompanies the notice of budget meeting. The notice must also be posted in a conspicuous location on the condominium or cooperative property for at least forty-eight hours prior to the meeting. Condominium associations with 150 or more units have additional notice requirements. Specifically, the notice of the budget meeting and the proposed budget must also be posted on the association’s website or be made available on an application that may be downloaded on a mobile device.

There are lesser restrictions in homeowners’ associations as to notice. Boards are required to post notice of the meeting at least forty-eight hours in advance of the budget meeting. There is no requirement that the notice be sent to the owners, and there is no general website posting requirement for homeowners’ associations in Florida. There is also no requirement for homeowners’ associations to send the members the proposed budget in advance of the budget meeting. It is actually the opposite of condominium associations in that the board must provide each member with a copy of the budget or a written notice that a copy of the budget is available within ten days after the meeting at which the board adopted the budget.

In either case, the governing documents of the community may impose stricter notice requirements than the minimum statutory requirements. For example, if your association bylaws require a longer notice period for the budget meeting, such as thirty days’ notice, the board needs to verify and adhere to the bylaw requirement when setting up the budget meeting.

In addition to the ability to attend budget meetings, what other involvement do community members have in the budget process?

Generally, in community associations, the board alone has the authority to adopt the budget without a vote of the membership. You may consider having association counsel verify that the governing documents do not require membership approval of the budget if you are unsure that the board has the authority to do so.

For condominium associations and cooperatives, the statute allows the membership to get involved in the budgeting process in the event that the board adopts an annual budget which exceeds 115 percent of the assessments for the preceding year. At least ten percent of the members must submit a written request for a special meeting of the owners to consider a substitute budget. For condominium associations, this request must be made within sixty days after the adoption of the annual budget. A proper meeting notice must be sent out and a membership meeting will be held. If there is not a quorum present at the meeting, or if the substitute budget is not adopted, the previously adopted annual budget remains in effect. In cooperatives, the board must call a special meeting within thirty days of receiving such request, and upon not less than ten days’ written notice to each unit owner. At the special meeting, unit owners shall consider and enact a budget. Unless the bylaws require a larger vote, the adoption of the budget requires a vote of not less than a majority of all the voting interests. There are no such provisions in the Homeowners Act.

The board has a fiduciary duty to the members of their community associations. Following the requirements of budget meeting notices and properly adopting the budget are thus critical and association counsel should be consulted when needed.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

“Sunshine Laws” for Condominium Associations

Published February 27, 2023

Issues generally arise in community associations when there is or appears to be a lack of transparency between the board of directors and the association members. The Florida’s Sunshine in the Government Act, or the “sunshine laws,” require transparency and disclosure in government and business. Although the Florida’s Sunshine in the Government Act does not apply to community associations, the Florida Condominium Act (Chapter 718 of the Florida Statutes), the Florida Homeowners’ Association (Chapter 720), and the Florida Cooperative Act (Chapter 719) contain their own set of “sunshine” requirements for boards of community associations. Transparency is the key to following the sunshine laws.

First, boards need to determine which meetings must to be open to association members. While boards may desire to avoid certain topics in open meetings, the Acts referenced above require board meetings to be open to members and owners have a right to be informed. The Homeowners’ Association Act defines a meeting of the board as “whenever a quorum of the board gathers to conduct association business.” First, a quorum of the board must be present. For example, a discussion between two directors of a five-member board would not constitute a meeting of the board. The meaning of “conducting” business is trickier. Some boards may desire to meet for planning or agenda development, but the sunshine laws do not require a binding vote to be taken for a meeting to qualify as conducting association business. The board should consider that any gathering of a quorum of the board where the development of ideas takes place constitutes a meeting. The Condominium Act and the Cooperative Act state that meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners.

There are two statutory exceptions to the requirement that board meetings must be open. First, meetings with the association’s attorney to discuss proposed or pending litigation, or if the meeting is held for the purpose of seeking or rendering legal advice, may be closed. Second is when “personnel matters” are under discussion. Personnel matters should be limited to discussions of specific issues pertaining to association employees. So can individual board members meet or call one another to discuss association business as long as the meeting or phone call comprise less than a quorum of the board? Yes. However, remote meetings of a quorum of the board still constitute meetings that must be open to members.

The second important “sunshine” requirement is the noticing of meetings. The requirement that meetings be open to members is of little benefit if owners do not know when or where the meetings are taking place. Notice of all board meetings must be posted conspicuously on the community property for at least forty-eight (48) hours before the meeting. However, certain meetings, such as meetings where non-emergency special assessments or amendments to rules regarding unit or parcel use are considered, require notices to be mailed, delivered, or electronically transmitted to the unit owners AND posted conspicuously on the condominium property not less than fourteen (14) days prior to the meeting. The notices also need to clearly identify the agenda items that will be discussed at the meeting.

The “sunshine” laws also give owners certain rights at board meetings. Owners have a right to speak at all open board meetings on all designated agenda items. The right to speak does not mean that every unit owner is entitled to endlessly debate motions, but it does mean that the owners are entitled to be heard regarding matters the board intends to consider at the meeting. Thus, unit owner statements should be taken either at the beginning of the meeting, or at a set time in connection with a specific agenda item. Allowing owners to speak after the board has voted on the agenda item defeats the owners’ rights to participate. The association may adopt written reasonable rules governing the frequency, duration and manner of unit owner statements. Owners may also record or videotape such meetings.

What about committees? The sunshine laws also apply to committees that are empowered to take final action on behalf of the board, or committees that make recommendations to the board regarding the association budget. Under the Condominium and Cooperative Acts, all committees are subject to sunshine requirements unless the association bylaws specifically exempt committees from the sunshine laws. As such, members have a right to attend, speak and tape or video record at the meetings of the committees which fall in this category of what we call “statutory committees.”

Compliance with the “sunshine” laws is an important part of ensuring the association runs smoothly. When the board is transparent and members are well informed regarding association business, the board reduces the chances that discord will ensue between the board and the association members.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Tips, Tricks and Things You Can Mix

Published January 24, 2023

In this article, I am going to review some tips and suggested procedures to deal with some common misperceptions and/or misunderstandings in regard to various association items. These suggested procedures are based on what I have found to be recurring questions / actions or inactions from and/or by associations. Let’s dive right in.

Timesavers

Proxies and Limited Proxies

In condominiums and cooperatives, general proxies are used for establishment of a quorum and limited proxies are used to vote on a particular matter – amendments, waive reserves or financial reporting requirements, etc. In homeowner associations proxies may also be used for elections. Proxies and limited proxies are not secret. When returned in an envelope to the association, they can be opened in advance of the meeting. They should be opened in advance of the meeting and placed in unit order (whether numerical for a condominium or cooperative or by street address in a homeowners’ association). This allows you to keep a running tally of whatever is being voted on, ensure you are using the most recent proxy submitted, and saves time at the actual meeting. By keeping a running tally of the vote, the only proxies that have to be tallied at the actual meeting are those turned in at the meeting. Depending on the number of units in your association and the question or questions being voted on, this can save an enormous amount of time at the actual meeting.

Keep in mind that owners can always rescind or change their limited proxy, and the most recent one submitted controls. This is different from an election ballot in a condominium and cooperative, which cannot be rescinded or changed once submitted.

Voting Certificates

The same concept as above applies to voting certificates. When owners are returning voting certificates, whether for an annual / election meeting or any other meeting, open the voting certificates and file them before the meeting. If your association requires voting certificates, the association should maintain a book of voting certificates, in numerical or address order, for use as needed at membership meetings. The most recent voting certificate will always control.

Ballots

In condominiums and cooperatives, owners are required to submit their election ballots in an inner and outer envelope. The owner envelope has to have the owner’s name, address and signature. While some associations keep the submitted ballots in a locked ballot box until the election meeting is called to order, there is nothing in the law that requires this. Ballots should be placed in unit / address order before the meeting. This will speed up the outer envelope verification process as well as identity duplicate ballots.

Documents for an Annual / Election Meeting

When preparing for an annual / election meeting, you should always have at the meeting:

Sign in roster
Unit roster by last name
Unit roster by unit/address
Voting certificate book
Meeting notice
Proof of meeting notice
Minutes from last membership meeting
If using electronic voting, a printout of the electronic vote tally by unit number /street address
Tally sheet(s), whether for an election, to vote on a matter, etc.
Letter openers
Empty bankers’ box for all the meeting documents required to be kept
Extra ballots and envelopes (for an election) and ballots and limited proxies for other matters being voted on
Designated person(s) for owner sign in

I cannot tell you how many times meetings have been delayed, sometimes significantly, because of a lack of some, or most of, the items listed above being prepared before the meeting.

Verify Outer Envelopes Before Annual / Election Meeting

This can be a real time saver of at least an hour, if not hours, at a condominium or cooperative annual / election meeting. Both the condominium and cooperative statutes allow an association to have a meeting on the day of the election, before the election meeting, to verify the information on the outer envelopes. This means that by following the required procedures, the ballot outer envelope information can be verified before the annual / election meeting, allowing an association to perform the tedious task of verifying the outer envelope information before the annual / election meeting is called to order. This allows an association to spend the time, in many cases an hour or more, before the meeting verifying the information as opposed to at the actual meeting, so the actual meeting can be completed much sooner than if the verification process took place after the annual / election meeting was called to order. Florida Administrative Code Rule 61B-23.0021(10)(b) provides:

Any association desiring to verify outer envelope information in advance of the meeting may do so as provided herein. An impartial committee designated by the board may, at a meeting noticed in the manner required for the noticing of board meetings, which shall be open to all unit owners and which shall be held on the date of the election, proceed as follows. For purposes of this rule, “impartial” shall mean a committee whose members do not include any of the following or their spouses:

Current board members;
Officers; and
Candidates for the board.

At the committee meeting, the signature and unit identification on the outer envelope shall be checked against the list of qualified voters. The voters shall be checked off on the list as having voted. Any exterior envelope not signed by the eligible voter shall be marked “Disregarded” or with words of similar import, and any ballots contained therein shall not be counted.

Verifying the outer envelope information before the annual / election meeting is a real time saver at the actual meeting. Note that this type of meeting must be noticed at least 48 hours in advance like a board meeting.

Myths and Misconceptions

Presidents only vote to break a tie. Incorrect. We are not talking about the United States Senate. Presidents should vote on every motion, unless there is a bona fide conflict of interest. That is what board members are elected to do.
A quorum of the board is required for a membership meeting. Incorrect. A membership meeting is not a board meeting. Board members do not vote at a membership meeting in any other capacity other than as a member. There are no board member votes at a membership meeting. A board member (usually the president or someone the president appoints) will usually run the annual meeting from an administrative point of view. Your governing documents usually contain an agenda for membership meetings.
A quorum is a majority. Incorrect. A quorum is whatever your governing documents say it is. It can be a majority of all owners or a certain percentage of owners (30%; 25%; etc.).
A majority of owners is 50% plus 1. Incorrect. While this seems to make sense, in certain circumstances it results in more than a majority. For example, if you have 100 owners, 50% equals 50, plus 1 equals 51, which is a majority of 100. But, if you have 99 owners, 50% of 99 equals 49.5, plus 1 equals 50.5, which is rounded up (you always round up) to 51, which is more than a majority of 99. (Note that 50.5 is more than a majority of 99 as well. A majority of 99 is 50).

If you have any questions regarding the above, contact your association attorney.

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

Can the Board Enforce Restrictions that the Previous Board Failed to Enforce?

Published December 29, 2022

The short answer is yes. But not so fast. The correct procedures must be followed. The Board needs to put owners on notice that from this point onward, the restriction that was previously unenforced will now be actively and evenly enforced. This is done through a Board resolution adopted at a duly noticed Board meeting. Association counsel should draft the resolution to ensure that the necessary language is included to begin properly enforcing the restriction(s) going forward.

The process of reviving a previously unenforced restriction comes from the case named Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So.2d 29 (Fla. 3rd DCA 1985). In Chattel Shipping, the association’s declaration of condominium prohibited unit owners from enclosing their balconies without prior approval from the board. Multiple owners, nevertheless, enclosed their balconies without the requisite approval. The board, prompted by a letter from the city that the enclosures violated the city’s zoning ordinance, informed the owners that it would enforce the restriction and prohibit future balcony constructions. After this announcement, one unit owner, Chattel Shipping and Investment, Inc., enclosed its balcony. When the association secured a mandatory injunction requiring the removal of the balcony enclosure, the unit owner sought a reversal on the ground that the association had failed to require the dismantling of the other existing enclosures and thus was unequally and arbitrarily enforcing the restriction.

The Court rejected the owner’s argument, holding that the association could adopt and implement a uniform policy under which a building restriction will be enforced only prospectively without the enforcement of the same being deemed selective and arbitrary. Thus, the Chattel Shipping case stands for the proposition that an association can revive the enforcement of a restriction despite previous non-enforcement by notifying the members of the Board’s intent to prospectively enforce the restrictions.

The reason the Board needs to notify owners that it will begin to enforce a specific restriction going forward is to ensure that the Board is not selectively enforcing the restriction. When a Board seeks to enforce a restriction against an owner, if an owner can show that there are instances of the same violations that the Board has noticed and not acted upon, the owner may be able to show selective enforcement. For example, in White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), the owner raised the defense that the association was selectively enforcing the restriction against children while allowing other families with children in other units. The Court agreed with the owner and did not enforce the restriction against this owner. The Chattel Shipping Resolution therefore acts to “reset” the enforcement of a restriction by stating that from the date of the resolution, the Board will begin to enforce the restriction.

There may be practical issues with beginning to enforce certain restrictions that were previously unenforced. For example, with the White Egret scenario above, the Board cannot reasonably expect that following the adoption of the resolution that owners with children would leave the condominium. Or if the previous boards have turned a blind eye to house cats or has not enforced the one-dog policy and now a number of owners have pets in violation of this restriction, the Board cannot reasonably expect that following the date of a resolution all owners with pets in violation will move or get rid of their pets.

In these cases, unlike temporary violations such as those of parking restrictions that the Board may begin to enforce against all owners immediately, the Board may need to adopt a “grandfather clause” as part of the restriction. “Grandfathering” allows owners or residents that are already doing something to continue doing so, even if they would be in violation of the new (or newly-enforced) restriction. Over time, there will be fewer and fewer exceptions to the restriction as grandfathered owners move away or pass. And eventually, the restrictions will apply to all owners and residents of the community, as subsequent purchasers in the community will be buying the units under constructive notice of the community’s restrictions. Such grandfather clauses should be carefully considered and only adopted in consultation with association counsel.

What about violations that involve permanent structures like the balcony enclosures in Chattel Shipping? Owners had enclosed their balconies without approval in violation of the documents. When resetting the enforcement of the violation, the Board did not require that these owners take down their enclosures, rather future balcony constructions were prohibited. This will usually need to be the case if owners reasonably relied on the Board’s failure to enforce a restriction. However, there are important exceptions. For example, if a new restriction to balcony enclosures is adopted by the association due to a need to protect the structural integrity of the building, the prior right to place items on the balcony will need to yield to the overriding safety considerations of the new rule. In such a case, the Board should obtain documentation of the overriding safety concerns, such as from an engineer’s report, before requiring owners to change structures that were previously allowed. Another example is if certain items are no longer code compliant, even if the equipment would ordinarily be entitled to grandfather status, the equipment should be brought up to code, if possible, or removed if rendered inoperable.

The Board should consult with counsel if it is facing issues with restrictions previously unenforced by prior boards. Association counsel can assist in reviving the restriction so that it is once again enforceable.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Is your Community Association Set up to Vote Electronically?

Published October 26, 2022

With election season upon us, has your community set up electronic voting? In many communities, voter apathy is an issue with members not returning their proxy and not attending meetings. Not only does this impact elections, but also other membership votes, such as amending the governing documents, voting on material alterations, etc.. One way to simplify the voting process for members is for the community to authorize and implement electronic voting. The Florida legislature has authorized electronic voting for elections and other membership votes in condominiums, cooperatives, and homeowners’ associations since 2015. Many communities, however, have not taken advantage of this option, even though electronic voting is a vital tool to encourage member participation at meetings.

In authorizing electronic voting, the Legislature set forth several statutory requirements to do so, which are discussed below. As always with statutory requirements, it is important to discuss the matter with association counsel to ensure that your community correctly implements its online voting system.

First, a unit owner must consent in writing to online voting. This consent is distinct from a unit owner’s consent to receiving certain notices by electronic transmission. However, for administrative ease and efficiency, association counsel can prepare a form for your community on which owners have the option to consent to either, or to both, receiving official association notices by e-mail and to online voting together. For the owners who consent to electronic voting, these consent forms become part of the association’s official records that are open to inspection upon written request from an owner. Unlike other official records which must be maintained either for seven years or permanently as outlined in the statute, papers and electronic records relating to voting must be maintained for one year from the date of the election, vote, or meeting. An owner who consents to electronic voting may opt out later.

In addition to the consent form, the association should have association counsel prepare the board resolution authorizing the online voting system, as the statute contains several requirements for this resolution. The board resolution must provide that unit owners receive notice of the opportunity to vote through an online voting system, must establish reasonable procedures and deadlines for unit owners to consent, in writing, to online voting, and must establish reasonable procedures and deadlines for unit owners to opt out of online voting after giving consent. Written notice of a meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property or association property at least 14 days before the meeting. Evidence of compliance with the 14-day notice requirement must be made by an affidavit executed by the person providing the notice and filed with the official records of the association.

Prior to any membership vote taken at a meeting, except for the election of board directors, a specific quorum must be reached. The statute provides that a unit owner voting electronically is counted as being in attendance at the meeting for purposes of determining a quorum. Thus, setting up electronic voting and having owners’ consent to using electronic voting helps the association achieve quorum and required approvals by making it easier for owners to be “present” and to vote.

The statute dictates several requirements for the association to set up online voting. The association must provide each unit owner for a method to authenticate the unit owner’s identity to the online voting system and a method to confirm that the unit owner’s electronic device can successfully communicate with the online voting system. The method to confirm that the unit owner’s device will be able to communicate with the system must be available at least fourteen days before the voting deadline. The online system must also be able to authenticate the unit owner’s identity and to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit. The system needs to also be able to transmit a receipt to each unit owner who casts his or her electronic vote.

In addition to the above, for elections of the board of directors of the association, the association must also provide a method to transmit the electronic ballot to the online voting system that ensures the secrecy and integrity of the ballot. They system must also be able to permanently separate any authentication or identifying information from the electronic election ballot. This is so that it is impossible to tie an election ballot to a specific unit owner. The system needs to be able to store and keep electronic votes as accessible to election officials in the event that a recount, inspection, and/or review is required.

These specific requirements are found in Section 718.128 of the Condominium Act, Section 719.129 of the Cooperative Act, and Section 720.317 of the Homeowners Association Act. To learn more about how to properly set up electronic voting for your community and the statutory requirements, speak with your association counsel.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Lender Questionnaires

Associations and association managers routinely receive what are referred to as lender questionnaires on a regular basis. What is a lender questionnaire?

A lender questionnaire is usually a request from a bank, lending institution or title company that requests the Association provide information about the community to the lender. Such requested information generally includes request for information concerning the community make up, collection procedures, community delinquency information, recreation areas, etc. More recently, requests from Fannie Mae and Freddie Mac have requested the Association provide information regarding the structural integrity of the building, reserve analysis reports, pending code violations, etc. What is the Association’s legal responsibility to answer such questions?

Associations are not required by law to provide a prospective purchaser or lienholder with information about the association other than information or documents required by the statute that governs such association, such as 718, 719 or 720, Florida Statutes This generally means the Association is only required by law to provide estoppel information as required by the pertinent statute.

There are slight differences in the statutes in regard to Sections 718, 719 and 720, Florida Statutes.

Section 718.111(12)(e)(1), F.S.:

1. The association or its authorized agent shall not be required to provide a prospective purchaser or lienholder with information about the cooperative or association other than the information or documents required by this chapter to be made available or disclosed. The association or its authorized agent may charge a reasonable fee to the prospective purchaser, lienholder, or the current unit owner for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney’s fees incurred by the association in connection with the response.

2. An association and its authorized agent are not liable for providing such information in good faith pursuant to a written request if the person providing the information includes a written statement in substantially the following form: “The responses herein are made in good faith and to the best of my ability as to their accuracy.”

Note the quoted language in the last sentence, which limits the liability for any response as long as the quoted language is included in such response.

Section 719.104(2)(d), F.S.:

The association or its authorized agent shall not be required to provide a prospective purchaser or lienholder with information about the cooperative or association other than the information or documents required by this chapter to be made available or disclosed. The association or its authorized agent shall be entitled to charge a reasonable fee to the prospective purchaser, lienholder, or the current unit owner for its time in providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, provided that such fee shall not exceed $150 plus the reasonable cost of photocopying and any attorney’s fees incurred by the association in connection with the association’s response.

Unlike the Condominium Act, the Cooperative Act section does not contain any language limiting the liability of the responder. But of course, there is no harm in including such language in any response.

Section 720.303(5)(d), F.S.:

The association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the residential subdivision or the association other than information or documents required by this chapter to be made available or disclosed. The association or its authorized agent may charge a reasonable fee to the prospective purchaser or lienholder or the current parcel owner or member for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney fees incurred by the association in connection with the response.

Also, unlike the Condominium Act, the Homeowners Association Act section does not contain any language limiting the liability of the responder. As noted above, of course there is no harm in including such language in any response.

Associations may provide additional information as requested by lender questionnaires. Associations may charge up to $150.00 to provide such information, as well as any reasonable attorney’s fees and costs incurred in connection with such a response. In the past, associations would routinely provide this additional information, which sometimes included information on association amenities, a percentage of how many accounts were delinquent, etc. As mentioned above, Fannie Mae and Fannie Mac have now added questions requesting the Association to provide information regarding the structural integrity of the building, reserve analysis reports, pending code violations, etc.

Generally, board members, managers and even the association attorney are not in a position to provide answers to these questions, and the Association is not required to provide answers to such questions. It has been my experience that most loans will close even if the specific questions are not responded to.

If the association does respond to these structural questions, it should be the association engineer that provides such responses. Some of the questions cannot be answered – questions that ask if there will be any violations in the future, for example.

If your association decides to respond to the lender questionnaire, before it just routinely responds to these lender questionnaires, take a close look at the questions; include the limited liability language mentioned above; and engage the association’s engineer to answer the appropriate questions.

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

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