“Boards Typically Do Not Have Unilateral Authority to Amend” – News-Press
Q: I have noticed that our governing documents contain numerous references to the developer, even though the developer is no longer involved. Can the homeowners’ association’s board have the authority to remove or amend these developer-related references from the documents without requiring a vote of the owners, given that these provisions no longer apply? (J.D., via e-mail)
A: Section 720.306, Florida Statutes, establishes the general requirements for amending homeowners’ association governing documents. Unless the governing documents provide otherwise, amendments typically require the affirmative vote of two-thirds of the voting interests of the association. The statute does not grant the board of directors the authority to unilaterally amend the governing documents, even for the purpose of removing or revising outdated developer-related provisions. Instead, amendments typically must be approved by the membership.
There is a narrow exception under Florida law for ministerial acts, sometimes referred to as scrivener’s errors. This exception allows the board to correct clerical or non-material errors or omissions in the governing documents. However, this authority is limited and does not extend to the removal or revision of substantive developer-related provisions, even if such provisions are no longer applicable.
Further, with regard to amendments to remove developer references, it is common for the documents to require the developer’s consent or joinder for certain amendments, while the developer still owns property within the community. Therefore, even after turnover, the developer’s involvement may be necessary for specific changes, depending on the terms set forth in the governing documents.
Q: Can a homeowner whose property is damaged by an errant golf ball hold the golfer and/or the golf course liable for the damage under Florida law? (B.B., via-email)
A: While liability for errant golf balls is unusual, it is possible for both the golfer and the golf course to have liability for the damage caused to the homeowner’s property, depending on the specific circumstances.
Regarding the golfer’s liability, Florida law establishes that a golfer has a duty to exercise ordinary care for the safety of persons or property reasonably within the range of danger. This includes taking precautions to avoid causing harm, such as ensuring that their shot is not likely to result in damage to nearby properties. However, not every errant shot will result in liability. Golf is a sport where some degree of unpredictability is inherent, and a golfer is not an insurer against all possible mishaps. The key inquiry is whether the golfer’s conduct fell below the standard of care expected of a reasonable golfer under similar circumstances. For example, if a golfer intentionally aims toward a home or takes a shot knowing that property is at risk, there can be liability. Conversely, a single, unintentional mis-hit that could not have been reasonably foreseen may not result in liability.
Regarding the golf course’s liability, Florida courts have addressed situations where golf courses are alleged to have created a private nuisance or failed to take reasonable measures to prevent harm to neighboring properties. In one case, property owners experienced approximately one-thousand golf balls entering their backyard after a golf course reconfiguration, resulting in broken windows, property damage, and inability to use portions of their yard. The court held that while living on a golf course and living with golf balls necessarily go hand-in-hand, the golf course could be held liable if it unreasonably exposed neighboring properties to errant golf balls. The court emphasized that liability of the golf course is similarly grounded in negligence principles. If the course is aware that a particular hole or tee placement results in frequent property damage and does nothing to mitigate the risk, a finding of negligence is more likely. On the other hand, if the course has taken reasonable steps to minimize the risk and the homeowner is still subjected to occasional, unavoidable incidents, liability is less likely.
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.
