Sunday, November 25, 2012

Florida cases provide answers to readers' condo and HOA questions.

The following are some questions I have received from Blog readers and citations to the Florida cases that provide the answers.

What is the proper way to suspend an owner's voting rights?

The suspension of voting rights must be listed on the agenda of a properly posted and duly noticed Board of Directors meeting. After such meeting is held, the meeting minutes must specifically identify each unit which had its voting rights suspended. A letter must be sent to each owner whose rights were suspended after such meeting advising them of the suspension. The Board cannot pass a rule or make a policy that the voting rights of any owner can be suspended automatically without benefit of the noticed meeting, listing in the agenda and a letter after the fact outlined above. See: Leonardis v. Porto Fino Gardens Association, Inc. Arb. Case No. 2011-02-8981 (Chavis/Summary Final Order/August 18, 2011).

Moral of the story: do it right the first time. It's not that difficult to post notice of a meeting, create a proper agenda and prepare minutes and a letter to suspended owners.

Is an email submission of a candidate information sheet considered proper notice to the association?

In the case of Cohen v. Harbour House (Bal Harbour) Condominium Association, Arb. Case No. 2012-02-3139, an owner submitted a candidate information sheet (resume) in the body of an email sent to the association a few minutes before midnight on the deadline date. The association did not include the resume with the second notice of election as the association believed that the candidate information sheet was not properly submitted pursuant to statute. The arbitrator agreed and held that the rules require a candidate information sheet to be provided on a piece of paper no larger than 8 1/2 x 11, not in an email.

Moral of the story: if you are going to submit a candidate information sheet, make sure it is on a piece of paper in the required size and don't wait to the last minute to submit your information. In this case, had the owner submitted several days ahead of time, there would have been time to resubmit a proper form to be included in the election mailing.

Is an association required to enforce the provisions of its Declaration?

I am going to give you the typical lawyer response: It depends! In Heath v. Bear Islands Association, Inc., 706 So. 3d 39 (Fla. 4th DCA, 2011), the association's declaration provided that the association "may, but shall not be required to, seek enforcement of the Declaration." An owner sued the association to compel enforcement of the declaration. The trial court entered summary judgment for the association and the District Court of Appeal affirmed. The appellate court stated that the plain language of the declaration gave the association the discretion as to whether or not it would enforce the declaration.

Moral of the story: while it is not advisable for an association to ever ignore its governing documents, there may be certain documents that make enforcement discretionary as opposed to mandatory. In those circumstances, whatever decisions the Board makes must be uniform and the Declaration cannot be selectively enforced.

1 comment:

  1. It's important to be knowledgeable about the different provisions and laws. That's why I consulted a legal expert on Florida condo law because we are planning to rent a condo unit somewhere in Miami and before signing any contract we made sure that we let our attorney explain everything.

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