May 10, 2014

Director blindsides the condo board

Q: I am a director on a condominium board. One director has taken it upon herself to selectively enforce rules. She has had the management company send out letters stating it is from the entire board of directors.

Q: I am a director on a condominium board. One director has taken it upon herself to selectively enforce rules. She has had the management company send out letters stating it is from the entire board of directors.

We have been blindsided at board meetings by angry association members. The rest of the board is confused by their anger as we had no knowledge of the letters sent to the members.

How can we control this one director before she puts us in harm’s way and we are hit with a lawsuit from an association member? Rules are for all — not just for members who have an issue with some residents.

PA, Tampa Bay

A: I would suggest two actions. The first is to warn the director in a private meeting to stop her selective enforcement. Warn her that if she continues, the board will formally warn her at a board meeting. The second action is to instruct the management companies not to send any communications without board approval.

The board as a whole must vote on any such actions and a majority of the directors rule. The condominium statues say that no one person can take private action without the approval of the board. This would mean that the director is in violation of the state statutes if she is taking unilateral action.

Q: Reading your recent comments on architectural review committees, I am a bit confused. We have an HOA. Over the past 10 years the architectural review committee has approved the addition of “flat roofed screened in enclosures” of which we have around 12.

Recently a homeowner sent a request for the same enclosure addition. The committee turned it down due to personal tastes, not adhering to consistency of past committees. Is not that previous “enclosure” change now “grandfathered” for the entire community? The architectural review committees, as you suggested, has never published a booklet of approved changes. This should have been started 10 years ago.

JA, Edgewater

A: Properly operating committees must be separate from the board. That means the architectural review committee should be composed of members of the community not necessarily the directors.

If the architectural review committee has the power to refuse a request, then the owner has a right to petition the board for a review and reversal of the committee’s decision. In your case the owner should find out why the request was rejected and what they can do to have it accepted. Maybe they were using a color or material that the committee feels is not acceptable.

If the submission was of similar style and color to those installed, the owner may claim “selective enforcement.” If there is no formal policy in place that was approved by past boards and the board fails to approve the similar addition, the owner may seek legal guidance and sue the board. The key question that must be answered is why was the submission refused and what action did the board play?

Q: Our condominium association has a rule requiring that all window coverings show white to the outside. This rule was put in place to eliminate the use of flags and such for curtains.

The new board president says we do not have the legal right to regulate the color of anything inside the unit. Do we need to remove this rule?

DW, DeLand

A: This is a document question. The board should review the documents to see if they have any restriction on window coverings. If the rule you are talking about was a board rule, the board has a right to change this rule enforcement at any time. Board rules and policies can be changed at any meeting or by any future board.

Here is a short lesson on how to promulgate rules. There should be a specific need to create a new rule. To make a new rule just because someone thinks that there is a need to pass a rule is not justification. Unnecessary rules create too many complications and result in undue backlash.

The first step is to determine if we have the power to create the rule. Second step: define the problem. Step three: Ascertain if a new rule is necessary. Step four: Determine what results are desired. Step five: Determine if a new rule will conflict with an existing rule or other provisions of the association documents and statutes. Step six: Determine if the rule will be reasonable and not arbitrary or capricious. Step seven: Determine if the rule will be enforceable and what powers will be required to enforce it. Final step: To get the members involved in creating the rule, you must get the members of the community involved in all phases of the rulemaking process.

From the information provided, it appears that board did not have the power to make and enforce this rule. It does not appear to be a problem for the condominium but was a concern of certain board members. If this is true, this was not a valid reason for such a rule.

Q: If an HOA board is recording a meeting of any type, does it have to inform all present that it is doing so? Florida seems to hold two views relative to recordings, but I cannot find a definitive answer to the question.

JI, Naples

A: The statutes allow members to record the meetings. It also allows the board to establish certain rules for members recording the meetings. Such rules could include that a member wishing to record the meeting must use battery power and not association’s electricity. The board may also require that recording equipment not interfere with the meeting procedures.

From your question, it appears that you are talking about the board recording the meetings. In this case, if the board formally records the meeting in order to process the minutes and then erases the tapes, they are not considered to be formal records. If the tapes are retained they become permanent records and can be reviewed upon written request by the members. If a member records the meeting, he should notify the board of the recording but he does not need approval.

If the board has a procedure to record the meetings, all it has to do is notify the members in a board meeting once that they will be recording all meetings. The board does not need to notify the members at each meeting. In addition, the board should notice the members that the recordings are for the purpose of producing minutes and are not permanent records or that they are permanent records for the association.

Q: Is it ethical for the president of an HOA to “appoint” himself to serve on a committee? I’m not talking about ex officio, but as an active member of a committee?

G.W., Miami

A: Committees should have a direct liaison with the board. Any director/officer can be appointed as the committee’s liaison. Normally the president does not appoint himself, but there is nothing illegal or improper in this action.

Keeping in mind that the duties of the committee are usually to answer questions and provide solutions to problems. Committees usually do not have agendas; their task is to address a specific issue. There is no quorum requirement for a committee meeting, and any person should be allowed to attend.

There are a couple of exceptions and requirements such as a budget committee and a screening committee. You also have a fining committee that no board member should attend. Most committees do not fall under these strict provisions. I see nothing wrong in the president being the liaison between the committee and the board in most cases.

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