Condos

How can we fill a board vacancy?

Q. Our director suddenly died, and we immediately appointed another board member to the position. These recent changes have left openings on our board. Traditionally, we have had five board members; we currently have three. The property-management company tells us we must wait until the next election to elect any new board members. Is this correct?

We are not happy with our property-management company and find its people unprofessional and argumentative. Do you have any suggestions for us?

K.H., Orlando

A. Your manager was incorrect. You need to refer to FS 617, the corporate statute that defines how boards function when there are vacancies. The specific selection can be found at FS 617.0809. All Florida statutes can be found at www.leg.state.fl.us.

From your question, it appears that you do not know the difference between a director and an officer. The members elect the directors at an annual meeting except when there is a vacancy, and then the remaining directors appoint someone to fill the vacancy. When a director resigns or a director’s position is vacant for other reasons, the board must appoint or elect a new director as soon as possible to fill the vacancy until the next election.

The officers are elected by the board of directors, who can elect new officers at any board meeting. So the remaining directors must fill the officer’s position until the next election.

As for your property manager, make sure he is qualified as a Community Association Manager and is properly licensed. I would have a meeting with him to tell him what you are dissatisfied with. Ask for his suggestions on how to correct his actions — in other words, a job description. You want to document this meeting and allow him a certain number of days to correct the problems and comply with the job description.

Q. I am the manager of the condominium where the owners are allowed to have private gardens, but they must be maintained to a community standard. A resident refused to maintain a private garden, so the board directed me to send a letter asking them to clean up their garden within 30 days. The 30 days went by and the garden was still not maintained, so the board asked me to send a second letter by certified mail. When the owner did not respond, I sent a third certified letter saying that the association was going to have the garden cleaned up by a landscape contractor and the association would bill the homeowner. The owner refused to pay.

What options does the association have to recoup its money? Filing a lien is expensive. Can we take them to small claims court to get a judgment, or does the association have to go through mediation or arbitration first?

S.S., Boynton Beach

A. When you go to small claims court, you receive only a judgment right. To enforce the judgment, you need to take it to the next level and place a lien on the owner’s property.

Like delinquent accounts, rules enforcement also requires the guidance of an attorney. Fines for rules enforcement cannot be liened directly. In your case, you could have issued a special assessment to the owner — and that would have allowed the attorney to file a lien.

Most legal costs of the collection of delinquent accounts, as well as rules enforcement, can be charged to the property owner. The statutes and the documents for associations provide directors with the most powerful tools to enforce rules and collect delinquent accounts. If the association does it correctly with legal guidance, owners can lose title to the property and find themselves on the street.

In your case, you need to understand the legal term “self-help.” That is a process that allows the association to enter private property to repair, clean up and replace as necessary. Never refuse to seek legal guidance, as the cost would be considered an expense of doing business.

My advice is to enforce the rules all the way or do not enforce them at all. If you’ve done as much as you can to enforce the rules, then it is time to turn the matter over to the attorney.

Q. Our homeowners association property manager stated in a very detailed way that, “Previously, the statutes only allowed the ability to fine if the association’s governing documents so allowed. This is no longer the case. All associations may now fine even if it does not allow so in their governing documents.” Is this true? I took a proposal to the president who told me he talked to the attorney and she said no, we still need a two-thirds vote of the members to add fines.

E.L., Naples

A. In reviewing the 2013 FS 720.305, the words that require fines to be approved in the association’s documents are vague. However, all the restrictions that were previously listed in establishing fines are still in this section. I will warn you that if the association/board of directors tries to issue a fine for violations and did not follow the strict procedures found in this section, collecting the fine and enforcing correction of the violation can be difficult, and maybe impossible. I never recommend fines as the best enforcement option — since the requirements are so rigid, if the matter goes to court later a fine can be easily overridden by a judge. I suggest instead that you take the matter directly to court from the start.

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