Q: What steps can my homeowners’ association take to control speeding on our community’s roads? (A.G., via e-mail)
A: A number of issues are at play here. For example, what speed measuring devices are being used, if any, what enforcement measures does the association have, how are the association’s roadways classified, and who has easement rights over the roadways?
Generally, there are several measures that an association can take to help slow the speed of traffic. If your association does not have traffic rules, your board may adopt traffic rules at a properly noticed board meeting. Associations have tools available to enforce their rules, these include sending notices of violations, the fining and suspension of use rights, and or taking further legal enforcement action.
Another approach to help slow the speed of traffic would be the installation of speed bumps. However, such approach could require a membership vote because, depending on the language of your governing documents, such installation may constitute a material alteration to the common areas. Your governing documents should also be consulted to determine what parties have easement rights to the common area roadways and whether speed bump installation would be considered an impairment of easement rights.
Moreover, even if the association’s roadways are deemed private roads, Section 316.006 of the Florida Statutes provides that “[t]he board of directors of a homeowners’ association as defined in chapter 720 may, by majority vote, elect to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association.” To this end, an association may contract with local law enforcement to have law enforcement agents enforce state traffic laws on the association’s private roads.
We would recommend for the association to consult with its legal counsel before adopting new board rules, undertaking to install speed bumps, and/or entering into any contracts.
Q: I live in a homeowners’ association that we thought was governed by Chapter 720, Florida Statutes. Now, we are being told that the association is a not-for-profit corporation subject to Chapter 617, Florida Statutes. How can my association confirm what it is and what are the ramifications if we are a Chapter 617 corporation and not a 720 homeowners’ association? (J.R., via e-mail)
A: Your association is probably both. In Florida, most community associations, including homeowners’ associations governed by Chapter 720 of the Florida Homeowners’ Association Act (“HOA Act”), are, typically, also organized as corporations not-for-profit, pursuant to Chapter 617of the Corporations Not-For-Profit Act (“Not-For-Profit Act”). In order to confirm, you would have to review the governing documents for the association, specifically, the articles of incorporation and the bylaws. However, in all likelihood, the association is a corporation not-for-profit subject to the Not-For-Profit Act and a homeowners’ association subject to the HOA Act. Section 617.1703 of the Not-For-Profit Act states that in the event that there is a conflict between the provisions of the Not-For-Profit Act and the HOA Act, the HOA Act would apply.
Q: The board of directors of my condominium association has three members, I thought that there had to be at least five members on the board? (M.G., via e-mail)
A: The number of directors on the board would be established in the condominium documents, usually in the articles of incorporation or bylaws. However, if the condominium documents do not establish the number of directors, Section 718.112(a)1., of the Florida Condominum Act provides that the size of the board shall be five. Therefore, if the condominium documents establish the number of directors for the board at three, then that would control.