Thursday, June 30, 2011

Klinow Case Part II: An Unsuccessful Procedural Attack on Amendments.

Previously in this blog we were discussing the case of Klinow vs. Island Court at Boca West Property Owners' Association, Inc, a 4th DCA case where a couple sued their association for amending the governing documents in support of a beautification project for the community.

The Florida Supreme Court ruled in 2002 in the case of Woodside v. Jahren that an owner who buys into a condominium does so with the knowledge that his or her rights under the Declaration of Condominium are subject to change by amendment. This same logic has been applied to those living in homeowners' associations. Despite this well-settled law, some owners continue to be dismayed when they find themselves on the losing side of a membership vote.

While Mr. and Mrs. Klinow substantively attacked the wisdom behind giving the association newfound discretion over sidewalks and driveways despite a 2/3 membership endorsement to do so, they also attacked the validity of the amendments themselves.

First the owners claimed that "contingency votes" were used at the special meeting to vote on the amendments. The association's rebuttal was that three owners changed their minds and resubmitted different votes after reconsidering the amendment language. The Court did not find the owners' argument convincing especially in light of the fact that a second vote on the amendments at the association's annual meeting had no such owner wavering occur and the amendments clearly passed with ease.

Second, the owners claimed that since voting certificates were not used, all votes from lots with multiple owners should be discarded. Mr. Klinow produced a voting certificate from a past vote as proof that they had been used at one time.

However, the 4th DCA relied upon the following input from the DBPR: "Voting certificate requirements are allowable devices to avoid confusion from possible conflicting votes from a single unit. They wil not be rigidly enforced to interfere with the statutory right to vote of recognized owners of condominium units, unless the association demonstrates good cause to do so. When an association has not consistently enforced provisions regarding voting certificates, failure to comply with technical requirements of such provisions will not be accepted as grounds to reject votes of unit owners of the condominium."

The court held that Mr. Klinow producing a lone past voting certificate did not show that they were regularly used and thus, the failure to use voting certificates in this particular vote did not defeat the measure.

There have been gross cases of voting abuse over the years in connection with membership votes to, among other items, amend documents, obtain material alteration approval and to use reserve funds for non-reserve purposes. It is the job of counsel to determine which procedural irregularities rise to a level that will sustain a challenge and which will not.

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