By Attorney Steven J. Adamczyk
Q: Our condominium board meetings go on for hours and a select number of owners seem intent on hijacking the board meetings for their owner platforms and board members are threatening to resign. What can we do?
R.A., Bonita Springs
A: The strictly legal answer involves remembering that board meetings are intended for board action and there is no obligation to answer questions or engage in debates with owners. In other words, yes, the board has a duty to provide an opportunity for owner input and an opportunity to address the board on each designated agenda item, but there is no legal obligation for the board to get into a back and forth with owners that have differing viewpoints. Discussion and debate can be extremely helpful, but it can also be dilatory. Your obligation is to listen and to consider the owners’ input and if your meetings were limited to three-minute comments, the meetings would probably be much shorter.
Realistically, it is never that simple and dialogue between the board and the owners in attendance can be a productive and transparent exercise. Realistically, it is also hard to ignore attacks against the board.
Here are three pieces of advice. First, I would recommend implementing a sign-up list for speaking at board meetings. If you can limit speaking opportunities to those who ask to speak on designated agenda items, it can mitigate the spontaneous comments and debate. Second, most communities do this even without a rule, but I would recommend adopting a rule limiting owner comments to three minutes per property. Third, remember that sometimes the best answer to a question is to acknowledge the question and commit to a future response. Engaging in a debate without having all information can often invite a lengthy and endless debate. If you follow these three recommendations, I cannot promise that you will have perfect board meetings, but they should be more efficient.
Q: Our homeowners association (HOA) just had our annual meeting and there was no quorum. In fact, we have not had a quorum in five years. What are the implications of not obtaining a quorum?
A: There are many implications for failing to reach a quorum and the basic answer is that your association is unable to conduct any business requiring a vote of the membership. Thus, you first need to know what decisions can be made by the board, and what decisions are made by the membership. Because a quorum at a membership meeting only impacts decisions that are made by the members, this is an important distinction. To answer this question, you should have your covenants reviewed by a licensed Florida attorney because the default rule is that most decisions concerning the operation of your association are made by the board, but there are certain decisions that are required to be made by the members under Chapter 720 and other decisions which are not addressed by the statute, but your covenants specifically required a vote of the members to authorize the board to take action. In other words, a quorum of the membership can be irrelevant depending on what decision is being considered.
For example, the annual meeting typically includes housekeeping items such as votes to rollover surplus revenue, to approve financial reporting changes, or more unique votes such as amendments to covenants or funding for large renovation projects. Ultimately, if there is no quorum, there is no meeting. If there is no meeting, there is no ability to approve these important items.
Another important quorum requirement is the election of directors. In an HOA (unlike condominiums) the statute provides a default rule that the election of directors (if necessary because there are more candidates than positions available) occurs at the annual meeting and requires a quorum. If the same analysis is true, then there is no election if there is no quorum, and this means that the prior board of directors continues to serve unless and until there is a quorum because their term technically does not end.
So, it is important to obtain a quorum when there is business requiring the membership to vote. It is important to know whether you need a membership vote in the first place, and it is important to know that there is a mechanism to adjourn and continue the meeting (typically up to 90 days), in order to seek additional participation. If you have any questions on this topic or continuation mechanism, consult your Florida legal counsel.
Q: One of our owners continues to park his vehicle in the valet parking spaces and our rules strictly prohibit owners from using these parking spaces. When we send him a letter, he moves the car, but it always seems like the car is back in the valet parking spaces a few days later. What can we do to stop this repeat behavior?
T.S., Marco Island
A: The ability to enforce a violation is based both on the statute and your governing documents. Assuming your community is a condominium, and in addition to other rights such as arbitration and injunctive relief, 718.303 provides the association with two in house options: fines and suspensions.
First, the association can levy fines of $100 per violation up to $1,000 for a continuing violation. If the car is in the valet parking spot for five days, you could theoretically levy a fine of $500 (five days at $100 per day). If the car was in the parking spot for 13 continuous days, the fine would be capped at $1,000 (10 day maximum at $100 per day). It is important to note, however, that the statute does not specifically require the association to provide a warning letter and an opportunity to cure the violation. Thus, if you find yourself banging your head against the wall because the owner keeps taking advantage of the warning letter before enforcement, I recommend you reconsider whether the warning letter is appropriate in all circumstances.
The violation is an enforceable violation on the first day unless your governing documents self-impose a requirement to provide a warning letter. This means that the statute does not require a warning letter, but you need to have your covenants and policies reviewed by a Florida licensed attorney to determine whether you are required to provide that warning letter because of your own specific covenants.
If your covenants require you to provide a warning letter, you should consider pursuing a vote to amend the covenants to remove this requirement. If the warning letter is part of your rules or polices, I would recommend you add a provision to the policy stating that the warning letter can be avoided in the board’s discretion and for any reason. This way, you could still provide a warning letter if you wanted to warn, but you could also immediately fine $100 per day for this particular violation so that the owner does not take advantage of the perpetual opportunity to cure. It also means that poor parking habits could get expensive, and this may compel compliance with the parking rules.
Second, the association could suspend the offending owner’s right to use the common amenities such as a clubhouse, gym, pool, and other amenities. This remedy is particularly helpful in situations where the association can control access through key fob or other access devices.
If you want to pursue either of these remedies, it is highly advisable that you consult your legal counsel to determine how to provide the appropriate notices and due process to levy a fine or suspension. Florida law supports this enforcement vehicle to avoid using the court and arbitration systems, but there are also many ways to commit errors that could jeopardize your ability to collect a fine or enforce a suspension.