April 26, 2014

HOA bylaws have an expiration date

Q: Our Home Owners Association recently became 30 years old and one of our members suggested that our Deed of Restrictions and By-Laws are now expired due to the Marketable Record Title Act.

Q: Our Home Owners Association recently became 30 years old and one of our members suggested that our Deed of Restrictions and By-Laws are now expired due to the Marketable Record Title Act.

Is that true? And if so, please suggest our next step in reinstating them.

T.L., Chuluota

A: The Florida Marketable Title Act is seldom discussed but is very important for homeowner associations, not condominiums.

Under the act, encumbrances on real property such as the covenants and restrictions (the documents) may be rendered unenforceable and may be extinguished. That means that the board will be unable to enforce the rules and regulations and collect delinquent accounts.

Associations that find themselves near this time should consult with their association attorney. Since you are past the time, you need to have the members reapprove the documents. If you do not take immediate steps, you may find that you cannot enforce the documents.

Q: Under what circumstance may a nonmember of an association be allowed to chair the annual meeting of the association or a board meeting?

B.C., Hudson

A: At an annual meeting, a nonmember can serve as a chairperson if the members approve. Normally that person would be neutral and knowledgeable as to how to run a meeting. It could be an attorney or manager because they have experience and knowledge to control the meeting.

A nonmember could chair a board meeting with the approval of the board of directors. While you may have the opportunity to vote for the chairperson, it is not necessary and rarely requires a vote. There is no requirement or law that says the chairperson must be a member.

You should look for a person who will control the meeting, follow the agenda items, be neutral to all sides of the question, have knowledge of association operations and statutes, and provide professional control of the meeting.

Since very few directors have experience in chairing meetings, it’s often better for an experienced chairperson to handle the duty. When I chaired meetings as the manager, the meetings were shorter, stayed on track of the agenda, and completed business as required. Is that not what most members want?

Q: Can I have a board member removed by petition? I live in a HOA of 100 units. How many votes do I need? When I am done petitioning, do I need to bring the votes to the annual meeting or to any monthly HOA meeting? Also, can the board members vote her off and when can it be done?

R.C., Broward

A: The action you’re talking about is called recalling a director (FS720.303(10), and your HOA documents should define how to do that.

The answer to your question is simple: Only the board can remove an officer and only the members can recall a director.

The problem with recalls is the strict legal terms that must be followed. For that reason, I suggest that you seek guidance from an attorney. Once you have the proper signatures on the petition, it must be presented to the board. The board then must call a special members meeting to vote on the recall. If the petition is not properly worded or executed, it is invalid and the recall will not be scheduled for a vote.

Since this is such a time-consuming situation, I have another suggestion: Start preparing for the next annual meeting. Since you are going to have to go door to door to get the petition signed, why not start asking the members to become candidates and vote for your candidates? You stand a much better chance to have board members elected to fill the positions you are trying to eliminate.

Q: Our office manager, who is also the president of the board, claims that he does not need a CAM license. We have 260 units in our complex and well over the $100,000 budget yearly. None of our officers or directors is paid. It is my understanding that communities greater than 10 units and with budgets of $100,000 or more must have a licensed community association manager. Can the board manage the community as volunteers? Is he correct in claiming that he does not need a CAM license?

LK, Orlando

A: Your president is correct in that the statutes do not dictate that communities hire professional management, a “licensed community association manager” (CAM).

The section that you refer to of 10 units/$100,000 is a requirement that if you pay someone to manage, they must be licensed as a CAM. If the board is willing to do the work and except the responsibility without compensation, the board is the body with the power to vote to have management or not have management. It is not a members’ vote. The primary factor would be if the board is receiving compensation.

Q: What is the difference between a condominium association and a cooperative association? How does selling the entire property differ?

RC, Miami

A: The main difference is the way that title to property is conveyed. The process would be similar in that you need members’/owners’ approval. You also will need the guidance of an attorney. In a condominium, title is held by a deed. In a cooperative title is held by a share stock. While both are managed and operated by a board of directors, the members/owners would vote for the change. It is a case where you need legal guidance.

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