Q: Our condominium association is considering converting into a “55 and older” community. Is it true that 80% of our units must vote “yes” to effectuate this change? (D.J., via e-mail)
A: No. The federal Fair Housing Amendments Act of 1988, as amended by the Housing for Older Persons Act, states that communities meeting certain conditions demonstrating an affirmative intent to provide “housing for older persons” are exempt from prohibitions in the law against “familial status” discrimination. This means qualifying communities may legally exclude families with children.
80% of the occupied units must be occupied by at least one person age 55 or older. The association would also need to amend the community’s applicable governing documents to implement a covenant requiring occupancy by persons age 55 or older. The association must also adopt and enforce policies and procedures that demonstrate an intent to provide housing for persons 55 or older, including age verification procedures and periodic updates.
Penalties for discrimination based on familial status are harsh and are often pursued against directors and managers individually. The association should consult with its legal counsel before taking any further steps.
Q: A question has come up about the size of the board for my condominium association. Currently we have a seven members board and would like to reduce the size of the board to five members. How can this be done? (D. R., via e-mail)
A: Generally, the bylaws for the association establish the size of the board of directors. In the absence of any guidance in the condominium documents regarding the size of the board, Section 718.112(2)(a) of the Florida Condominium Act, provides that the board of directors is comprised of five members. This rule has been applied to bylaws which contain “expandable and retractable” language, such as “the board will consist of between three and seven members.”
If your bylaws provide for a seven-member board, they would need to be amended. If you use staggered terms, the amendment must be carefully crafted so that the staggering does not become lopsided, for example: requiring four directors to be elected one year and one director the following year. Further, amendments are not valid until recorded in the public records.
If you wish to implement this at the next annual meeting, then a special meeting would need to be held sufficiently in advance. If you wish to vote on the amendment at the annual meeting, it would not be effective until the following year. According to the Florida Supreme Court, preparing association document amendments is the “practice of law” and should only be done by a properly licensed and qualified attorney.
Q: Can my association suspend my use of common facilities without providing me notice? (B.P., via e-mail)
A: No. The Florida Condominium Act, the Florida Cooperative Act, and the Florida Homeowners’ Association Act, all permit the suspension of use rights, but certain procedures must be followed, which are slightly different in each statute, but generally the same concept.
A suspension levied by the board for violations of the governing documents may not be imposed (made final) until the association provides at least fourteen days’ notice to the owner and, if applicable, any occupant, licensee, or invitee of the owner, sought to be suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.
If an owner is more than 90 days delinquent in paying a fee, fine, or other monetary obligation due to the association, the association may suspend the right of the owner or the owner’s occupant, licensee, or invitee to use common elements, common facilities, or any other association property until the fee, fine, or other monetary obligation is paid in full. The suspensions must be approved at a properly noticed board meeting. Upon approval, the association must notify the owner and, if applicable, the owner’s occupant, licensee, or invitee by mail or hand delivery. No hearing is required for this type of suspension.
Joseph 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 jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.