Condo Line

Can homeowners lessen powers of board of directors?

 

By Richard White CAMquestion@cfl.rr.com

Q: You say the only thing to do at an annual meeting is elect the directors. I say the members can vote to change the bylaws and lessen the powers of the directors. Your comments please?

E.P., Palm Harbor

A: Point well taken! However, what I said was the main purpose of an annual meeting was to elect the new board of directors. It’s not the only thing that may be voted on at the meeting. Additional business may be discussed and voted by the members if it is on the agenda. A member may not stand and ask for the floor to make a new motion unless it’s on the agenda.

I never recommend modifying the documents or the bylaws unless such changes have been reviewed by an attorney. Keep in mind that such changes must be recorded in the county court records and it may affect title to each property in the community.

Since an annual or members meeting is usually for and by the members, the Board of Directors should not try to control the meeting. Normally the president or chairperson will run the meeting. In some cases the chairperson may be elected or nominated to chair the meeting and operate the procedures for that meeting. The chairperson could be the manager or attorney or another professional. This chairperson could be a member in the community. I do suggest that that person be fully familiar with meeting procedures and the agenda items to be discussed.

Since the statutes and the documents define the duties of the board of directors, limitations voted on to control the board may not be legal. As an example, the members cannot impose a spending limit on the board because the statutes require the board to maintain, not improve, the common areas and operate the association, and they allow the board to assess the members for the necessary repairs or replacements.

Annual or members meetings, including board meetings, are not a place to air problems or disputes. Agendas and discussions should be restricted to necessary business for the board or members to discuss and vote. If you have any complaints they should be presented to the board in writing well before the meeting.

Q: I live in a very small HOA. The board has refused to enforce deed restrictions that do not suit them. Board and committee activity is held in secret. They consider violations by board members and their friends as acceptable.

It seems unless an owner brings a suit, there is nothing to be done. The attorney is seldom if ever consulted because he might suggest what is being done is inappropriate. Requests for attorney opinions are denied. I am not convinced an attorney is concerned with board violations as much as the defense of the board against homeowners.

Is it possible for an HOA to, in effect, dissolve itself? Would it be correct to say, without a court ruling, the state and county have no interest or authority over what happens?

A.D., Fort Lauderdale

A: Unfortunately you are correct. There is no state agency that can assist homeowner association owners if the board is not properly operating. It is a do-it-yourself project. This means either you must engage legal counsel and the court system or vote the board out of office.

As to dissolving the association, it’s an almost-impossible task and legal costs would be expensive. Your documents should refer how to dissolve, but it’s usually a situation such as devastating hurricane damage to a majority of the association’s property. Most documents require not only a vote of the members but also any mortgage holders and/or other interested parties to include local governments. If you have common areas such as roads, fences, parks or clubhouses, they would require title transfers to another entity.

I know of only one homeowner association that has been terminated. I really do not feel that termination is the best way to go. I believe your best choice is to go to your neighbors and see what they say and try to get them involved.

Q: My neighbor is renting out his unit and the new tenants are smokers. I am asthmatic and unfortunately their smoke comes into my front door and kitchen window. We share a common entryway that services both doors and exposes my kitchen window. They smoke all the time in front of my kitchen window and next to my front door. They also stand outside directly in front of my kitchen window late at night and talk loudly. It is like they are in my kitchen talking.

I know secondary smoke is harmful and smoke activates my asthma.

The owner of the unit said to me he would rather have them smoke outside the front door then ruin his unit.

I am a unit owner and they are renters. Do I have any rights under Florida or federal laws? I need to mail something to the unit owner and my board showing I have rights to enjoy and live freely in my unit also.

I know there are laws in Florida for indoor smoking, but do I have rights to open my kitchen window without the fear of cigarette smoke coming into my unit from outside smokers in the common area, or when walking out from my unit having to smell or breathe in cigarette smoke or walk into my walkway to my front door or opening my front door for fresh air?

K.K., Delray Beach

A: The question is not if you have rights, the question is how far you want to take the process to solve your problem. You should try to convince the board, the owner, and the renters to respect your needs. I would recommend you send a letter to the three parties explaining that cigarette smoke is very disturbing to you. Ask them to please respect your needs by smoking elsewhere.

If that does not work, send a certified letter to the three parties saying that if the problem is not corrected you will take other actions to force the issue. Obviously the first step is to seek from your doctor a letter stating that secondhand smoke is harmful to your health. Copies of this letter should be provided to the three parties with the final notice that should smoking continue, you will take legal action.

While I’m aware that you may be covered by certain laws, I cannot provide legal advice and you must seek legal guidance to determine if federal or state laws will force the issue.

Write to Condo Line, Richard White, 6039 Cypress Gardens Blvd., #201, Winter Haven, FL 33884-4115, or e-mail CAMquestion@cfl.rr.com. Include name and city.

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