Editor’s note: Attorneys at Goede, DeBoest & Cross, PLLC., 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: We are approaching hurricane season and our board is trying to prepare for an emergency situation. One concern is that our management firm has indicated that it will not staff the building in the event of a hurricane. What can we do to protect ourselves? -P.T., Naples
A: The board’s fiduciary duty is not necessarily suspended just because a hurricane is approaching Florida. It is also understandable that management staff need to protect their own homes and families during these emergencies. The association does not want to be faced with a situation where there is property damage, an inability to repair the property, and bodily injury resulting from the property damage.
If an owner was injured, you can imagine there would likely be a lawsuit irrespective of whether the association took reasonable precautions to secure the property. The Florida Condominium Act does provide a valuable tool in Section 718.1265. This statute provides the association with emergency powers following a declaration of emergency from the governor and is typically available following a hurricane event. Specifically, Section 718.1265 provides that the board may “require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located.”
Thus, the board can order an evacuation, but you can imagine that board members should not be going door to door and physically removing people in an evacuation scenario. As a result, the statute again provides assistance and states that “should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.”
As a result, if the board needs to order an evacuation and does so, the association is immune from liability if a resident fails to evacuate. To take this a step further, although this right is very helpful, you can also imagine that it would be difficult to coordinate and notice a board meeting for this purpose. As a result, many of our clients will have a disaster plan ready to be used in an emergency setting. One of the documents in the plan is a pre-drafted motion and resolution ordering evacuation. In the event legal counsel or management is not readily available during the emergency, this would provide the board with a relatively easy approval mechanism on short notice because the board would simply need to fill in a few blanks and satisfy its ability to order an evacuation.
Q: I live in a condominium and have enjoyed the view of a mature oak tree for many years. A few days ago, the condominium association removed the tree, citing maintenance concerns. They never asked my permission. Do I have any recourse? -G.T., Bonita Springs
A: Most likely you do not have any recourse. The general rule in Florida is that you do not have a right to a particular view unless it is promised. In this situation, if you are promised a view, the promise would likely be located in the Declaration of Condominium and may, for example, provide that the owner unit 100 shall be guaranteed a view of mature oaks. Alternatively, it may provide that certain trees may not be removed without permission of certain unit owners. This type of language is very rare, but it is possible that you have a contractual right.
If the documents are silent on this issue, the question then becomes whether the board has the right to remove a tree without a vote of the unit owners. Many owners will argue that landscaping decisions such as tree removal are material alterations, similar to changing the paint color of the buildings or changing the patio furniture. If it is a material alteration, the applicable statute requires at least 75 percent of the unit owners to approve the alteration. The statute also permits condominium documents to require a lower threshold than 75 percent and most condominium documents do provide a lower approval threshold.
Relative to your question, there are a number of arbitration cases concluding that landscaping decisions fall within the board’s business judgment and are not material alterations. If the board has discretion to remove the tree, you unlikely have a cause of action to force the tree to be replaced – particularly if the board has an opinion from a landscape contractor that the tree is diseased or dying. I would recommend you engage a licensed Florida attorney to review your condominium documents and the extent of the landscaping changes to determine if the board had authority to remove the tree.
Q: Our board of directors consists of seven directors, but the current roster of owners is apathetic, and we can’t get more than five owners to volunteer. What is the best size for a board of directors? -D.G., Bonita Springs
A: The answer to this question really depends on the size of your community as well as the fervor for participation. Larger communities typically result in larger boards because you can engage a larger number of willing volunteers to share in a presumably larger workload. Many communities are originally established with a board comprised of three directors because the original developer wants to keep it simple. The problem with this is that a quorum of this board is two directors, meaning any conversation between any two directors is technically a board meeting and requires 48 hours’ posted notice and is required to be open to the membership. A meeting of the board is any time a quorum of the board is together conducting business and therefore every discussion about the budget, for example, between two directors is a board meeting.
On the other hand, if you are unable to get enough participation due to lack of interest than you face a different problem. If you have five of seven directors serving, it means that four out of five of the acting directors must be present to constitute a quorum. As a result, you need to spend more time scheduling to make sure you can get 80 percent of the then-serving directors to attend a meeting.
My recommendation is to have your bylaws reviewed by a licensed Florida attorney to determine the best way to provide the right level of flexibility for your community. You may consider amending your bylaws to provide that the size of the board can increase or decrease from time to time in the board’s discretion or by a simple membership vote. Conversely, you could also consider setting a number of directors that matches historical participation and removes any flexibility. Ultimately, each community is different, and your attorney can help you draft covenants which match the needs and personality of your community.
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Steven J. Adamczyk, Esq., is a shareholder of the Law firm Goede, DeBoest & Cross, PLLC. Visit our website www.gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: info@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, DeBoest & Cross, PLLC 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.