Q: I own a condominium with only 15 units in our association. The declaration for the condominium has never been updated and currently requires a vote of 75% of the all unit owners to change. Because four owners can veto any amendment, nothing can pass. Is there any way around this? Does Florida law address what vote is required for amendments? (J.B., via e-mail).
A: Section 718.110(1)(a) of the Florida Condominium Act provides that no declaration recorded after April 1, 1992, may require that amendments be approved by more than 80% of the voting interests. Certain types of amendments are exempt from this rule, including amendments that change the configuration or size of a unit and amendments that would change the proportion or percentage that a unit shares in the common expenses.
The statute also states that if the declaration fails to provide an amendment provision, it may generally be amended by a vote of two-thirds of the entire voting interests. That is rarely an issue since almost every declaration will have an amendment clause, but I occasionally see declarations where this law must be used as the threshold by default.
In my opinion, declarations should be difficult to amend, regardless of the size of the condominium. Although “majority rules” is a well ingrained concept in our society, most declarations require super-majority approval for amendment, with two-thirds being the most common threshold, and 75% finishing a somewhat distant second.
The main issue I see with supermajority requirements, and this applies even more-so in the homeowners’ association context, is the impact of voter apathy or non-participation in association initiatives. When amendment votes or other important votes (such as material alteration votes) are subject to a super-majority voting requirement based on the entire membership, a “non vote” is a “no vote.” So, in your case, if an amendment receives 11 “yes” votes, zero “no” votes, and 4 owners don’t vote, the amendment fails. Since all owners are entitled to legal notice of meetings and the right to vote in person or by proxy (which may be sent as e-mail attachments if desired), many see this outcome as unfair and unreasonable.
The most common solution is to amend the relevant clauses of your documents to predicate the calculation of votes based on the number of units that actually cast a vote at a lawfully noticed meeting of the association at which a quorum is established. In the hypothetical above, if your voting was based on “75 % of the quorum,” an 11 to 0 vote would obviously pass. Of course, you have the chicken and egg to contend with, you could not change the manner of calculating votes without obtaining the currently required level of approval, 75% of all members.
Q: The board of directors of my condominium association says I am responsible for the door on the storage room in front of my parking space because it is a limited common element. Is that true? (S.F., via e-mail)
A: Section 718.113(1) of the Florida Condominium Act states that the association is responsible for the maintenance of the common elements. If the declaration of condominium says nothing about the storage closet doors, that would be the default answer under the statute.
However, the statute goes on to say that the declaration may delegate maintenance responsibility for limited common elements to the benefitting unit owner, or to the association, but at the sole expense of the benefitting unit owner (sometimes called a “limited common expense”).
Storage rooms/closets abutting assigned parking spaces (usually contained in a carport or some other form of covered parking) are almost always designated as limited common elements in the declaration (meaning that parking space and storage room is assigned to your unit and passes with the title). If that is the case, the declaration may properly require the owner to be responsible for various components of the storage facility, including the entry doors.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to email@example.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.