Q: One of the board members of our homeowners’ association has attended only one meeting in the past year and has not provided any reasons for their absences. I found no clear guidelines in our association’s documents on how to handle such situation. Our board president is content to tolerate the absences. Are there any restrictions in the Florida Statutes that would prevent us from amending our bylaws to allow for the removal of a director who misses a certain number of meetings? (J.D., via e-mail)
A: It’s complicated. Section 617.0808(1)(b)(3) of the Florida Not For Profit Corporation Act, which applies to not-for-profit corporations, including most homeowners’ associations, provides that a board of directors can remove a director for missing a certain number of meetings, but only if the articles of incorporation or bylaws allow this and a majority of the board votes in favor. However, Section 617.0808(3) specifically says that this section of the corporate statute does not apply to condominium or homeowners’ associations.
Section 720.303(10)(a)(1.), of the Florida Homeowners’ Association Act provides that a director may be removed by a majority vote of the total voting interests of the association, regardless of any contrary provisions in the governing documents. The Division of Florida Condominiums, Timeshares, and Mobile Homes ruled in a 2017 decision that a homeowners’ association’s board does not have the authority to remove one of its directors despite any bylaw stating otherwise.
The Division’s interpretation is not legally binding as “case precedent,” and unless and until the question is decided in an appeals court, it remains an open question of law. While there are reasonable arguments on both sides, it is my prediction that a court would be more likely to affirm the Division’s interpretation on the theory that since the members elect a person to the board, only they can vote to remove them. Additionally, while the Homeowners’ Association Act does not expressly prohibit disqualifying a director who misses meetings, I think the association carve-out of this option in the corporate statute would be very persuasive to a court.
Therefore, I would not encourage such a provision in the bylaws of an association. Directors can be removed from office by a majority of the members, with or without cause. If the community feels that this director’s apparent lack of interest is a problem, there is a fairly easy process to remove them.
Q: After a recent thunderstorm, the ceiling of our condominium unit started leaking. We had the ceiling repaired, but our condominium association has refused our requests for reimbursement, stating it is not responsible to do so because it bears no responsibility for our ceiling. Is the condominium association obligated to reimburse us for our repairs? (C.K., via e-mail)
A: That is a common, yet unfortunately, complicated question.
To address this issue, it’s important to first determine the cause of the leak. There are two likely scenarios: it may have been due to “maintenance,” or it could have been the result of a “casualty,” sometimes referred to as an “insurable event.” If the rain affiliated with the thunderstorm suddenly entered the building and caused water to damage your ceiling, this was most likely due to an “insurable event,” where Florida state law takes over. Under these rules, the association would be responsible for the repair of your damaged ceiling infrastructure (drywall, etc.) and you would be responsible for “ceiling coverings” such as paint.
However, if that was the case, the association should have had the opportunity to report the matter to its insurance company, inspect the damage, and to the extent the association was the responsible party, contract for the necessary repairs. When an owner handles repairs independently and then expects the association to cover the cost, this can complicate the situation substantially.
If the situation was not due to a “casualty,” the maintenance provisions of your declaration of condominium will prevail, and they often place responsibilities of this nature on the owner.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.