By Attorney Harris Katz
Q. We recently learned that the developer of our community is going to be acquiring adjacent land to add onto our existing community. We currently have single family homes and townhomes which total of about 250 residences. The plan, from what we understand, is to add somewhere around 100 additional townhouses. My biggest issue is that the current amenities (pool and gym) are not very large and, while they can accommodate the existing residents, we believe that the addition of almost 100 more residents will overtax these amenities. Is there anything that we can do?
A. Developers have extremely wide latitude in deciding how they want to develop a community. And, you are correct, that until turnover occurs, they maintain that control. As a matter of fact, some developer rights even continue long after turnover. So, the question is: What can you do about it? To be completely honest, there is very little that you can do as an owner in a developer-controlled association. Keep in mind that the community is going to be governed according to the terms contained in your governing documents. While developers have to follow the rules that they set forth in the documents, those documents will usually give the developer the right to annex additional land to your community, with very little in the way of limitations, especially before turnover. All-in-all, developers will leave themselves with extremely broad rights in the documents.
Notwithstanding this, you may have an argument that the addition of the townhouses violates the “scheme” of the community. By “scheme”, I am referring to the overall nature of the community that was sold to you when you purchased your home. In your case, the argument could be that the addition of the townhouses takes away the use of the common amenities from existing owners due to the limited size of those amenities, as you described it. Remember, I said you may have an argument. You need to review your documents very closely and speak to an attorney about how they could be interpreted, as developers have been down that road before and will likely include language designed specifically to derail any arguments on deviation from “scheme.” As an example, I recently reviewed documents for an HOA that, amid other provisions, had the following language: “Developer has established an overall Development Plan. However, notwithstanding the above, or any other document, brochures or plans, Developer reserves the right to modify the Development Plan or any site plan at any time as it deems desirable in its sole discretion…” And this language, as well: “Developer reserves the right to change all plans and site plans… Developer may wish and has the right to develop adjacent property owned by Developer into residences, estate homes, villas, coach homes, townhomes, zero lot line homes, patio homes, multi-family homes, condominiums, rental apartments, and other forms of residential dwellings, as well as commercial development, which may include shopping centers, stores, office buildings, showrooms, industrial facilities, technological facilities, and professional offices…”
It is language like the foregoing that can frustrate your making successful arguments about a “scheme” change to prevent the adjacent property from being developed. In short, you have an uphill battle in trying to prevent the developer from moving forward with its plans, but you should consult with an experienced attorney to explore any potential options and strategies that you may have at your disposal that may be unique to your situation as a lot of this will hinge on the language contained in the governing documents.
Q. What are the rules regarding owners’ ability to speak at Board meetings?
A. Florida law provides that either owners and/or their authorized representatives have the right to attend condominium association meetings that are open to the membership. You also have the right to speak at association meetings, with the caveat that you can only speak about the specific items on the agenda that was posted prior to the meeting. Although most meetings are open to members, members generally cannot raise new issues that are not listed on the agenda. Also, keep in mind that not every board meeting is going to be open to members. For example, a meeting to discuss litigation with the association’s lawyer will be a closed meeting in order to preserve attorney-client privilege. Also, as a member, you are permitted to record an open meeting, if doing so is not unduly distracting.
For homeowner’s associations, Florida Statutes section 720.303(2) provides that members have the right to attend all board meetings, and that “the right to attend such meetings includes the right to speak at such meetings with reference to all designated items.” The statute then goes on to state that the board may adopt reasonable rules governing the frequency, duration, and other manner of owner statements. It is important to note that this is slightly different from Chapter 718, which governs condominiums. The condominium statute provides that owners have the right to speak “with reference to all designated agenda items,” the distinction being that homeowner’s associations are not required by statute to have a detailed agenda while condominium associations are. The purpose behind allowing members to speak is that if the board is going to exercise business judgment, it needs to be informed, and part of this information gathering is hearing from the owners.