Q: Our declaration of condominium requires “two-thirds vote, by proxy or in person,” to approve an amendment. For example, if only 20% of members participate in a meeting, this would enable passage if 12% of the membership at a meeting to approve. Is this correct? Is there a minimum number of these “interests” required to amend our documents? (R.M., via e-mail)
A: The language of your declaration emphasizes the need for clearly written condominium documents. Unfortunately, this is often not a priority for many associations, and it becomes an issue at times when larger problems loom that necessitate the underlying amendment.
Let’s assume for easy math that your condominium has 100 units. If your declaration requires two-thirds of all voting interests to amend, you will need 67 of the 100 voting interests to approve. Conversely, if the declaration requires two-thirds of those who vote at a meeting to approve, you will need to call a membership meeting and establish a quorum before a vote can be taken. The Florida Condominium Act establishes a majority of the entire voting interests as a quorum (in our hypothetical, 51 votes), unless otherwise provided in the bylaws.
Most condominium associations have a majority quorum requirement, though I have seen some with lower requirements. It would be fairly unusual to see a 20% quorum in a typical condominium, but I do see it in some cases. Assuming your community uses the more common majority standard, amendments would be based on a sliding scale. If 60 units voted, you would need 41 to amend. If all 100 units voted, you would need 67 votes.
A well written document should say it is amendable by the stated percentage of those voting interests “present, in person or by proxy, and voting at a duly noticed meeting at which a quorum has been attained” (if that is the intent) or the stated percentage of “the entire voting interests,” if that is the intent. The language your declaration contains is inherently ambiguous, although I would be more inclined to state amendments are keyed to the entire membership, not just those who vote. This is a matter as to which the association’s legal counsel should be consulted.
Q: My condominium association recently levied a special assessment to fund some repairs to the condominium building. The project is now completed, and the final cost was less than the total amount of the special assessment. The association is now trying to determine what to do with the surplus. Some owners feel that this money must be returned to the membership. What does the board have to do? (C.O., via e-mail)
A: Section 718.116(10) of Florida Condominium Act states that when a condominium association levies a special assessment, the funds collected may only be used for specific purposes of the assessment as set out in the required notice of special assessment. The same law also states that once the purpose of the special assessment is completed, any excess funds are considered “common surplus,” and may, at the discretion of the board of directors, either be returned to the unit owners or applied as a credit to future assessments.
Therefore, while there is not a legal mandate that the surplus funds be returned to the owners, the owners must receive the benefit of the surplus either through the monies being returned in their proportionate share, or in the value of the surplus being credited towards future assessments. Ultimately, this is a board decision. You will want to review the condominium documents to determine if there are any additional restrictions concerning the use of surplus special assessment funds.
Joseph Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions via e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.