The short answer is yes. But not so fast. The correct procedures must be followed. The Board needs to put owners on notice that from this point onward, the restriction that was previously unenforced will now be actively and evenly enforced. This is done through a Board resolution adopted at a duly noticed Board meeting. Association counsel should draft the resolution to ensure that the necessary language is included to begin properly enforcing the restriction(s) going forward.
The process of reviving a previously unenforced restriction comes from the case named Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc., 481 So.2d 29 (Fla. 3rd DCA 1985). In Chattel Shipping, the association’s declaration of condominium prohibited unit owners from enclosing their balconies without prior approval from the board. Multiple owners, nevertheless, enclosed their balconies without the requisite approval. The board, prompted by a letter from the city that the enclosures violated the city’s zoning ordinance, informed the owners that it would enforce the restriction and prohibit future balcony constructions. After this announcement, one unit owner, Chattel Shipping and Investment, Inc., enclosed its balcony. When the association secured a mandatory injunction requiring the removal of the balcony enclosure, the unit owner sought a reversal on the ground that the association had failed to require the dismantling of the other existing enclosures and thus was unequally and arbitrarily enforcing the restriction.
The Court rejected the owner’s argument, holding that the association could adopt and implement a uniform policy under which a building restriction will be enforced only prospectively without the enforcement of the same being deemed selective and arbitrary. Thus, the Chattel Shipping case stands for the proposition that an association can revive the enforcement of a restriction despite previous non-enforcement by notifying the members of the Board’s intent to prospectively enforce the restrictions.
The reason the Board needs to notify owners that it will begin to enforce a specific restriction going forward is to ensure that the Board is not selectively enforcing the restriction. When a Board seeks to enforce a restriction against an owner, if an owner can show that there are instances of the same violations that the Board has noticed and not acted upon, the owner may be able to show selective enforcement. For example, in White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), the owner raised the defense that the association was selectively enforcing the restriction against children while allowing other families with children in other units. The Court agreed with the owner and did not enforce the restriction against this owner. The Chattel Shipping Resolution therefore acts to “reset” the enforcement of a restriction by stating that from the date of the resolution, the Board will begin to enforce the restriction.
There may be practical issues with beginning to enforce certain restrictions that were previously unenforced. For example, with the White Egret scenario above, the Board cannot reasonably expect that following the adoption of the resolution that owners with children would leave the condominium. Or if the previous boards have turned a blind eye to house cats or has not enforced the one-dog policy and now a number of owners have pets in violation of this restriction, the Board cannot reasonably expect that following the date of a resolution all owners with pets in violation will move or get rid of their pets.
In these cases, unlike temporary violations such as those of parking restrictions that the Board may begin to enforce against all owners immediately, the Board may need to adopt a “grandfather clause” as part of the restriction. “Grandfathering” allows owners or residents that are already doing something to continue doing so, even if they would be in violation of the new (or newly-enforced) restriction. Over time, there will be fewer and fewer exceptions to the restriction as grandfathered owners move away or pass. And eventually, the restrictions will apply to all owners and residents of the community, as subsequent purchasers in the community will be buying the units under constructive notice of the community’s restrictions. Such grandfather clauses should be carefully considered and only adopted in consultation with association counsel.
What about violations that involve permanent structures like the balcony enclosures in Chattel Shipping? Owners had enclosed their balconies without approval in violation of the documents. When resetting the enforcement of the violation, the Board did not require that these owners take down their enclosures, rather future balcony constructions were prohibited. This will usually need to be the case if owners reasonably relied on the Board’s failure to enforce a restriction. However, there are important exceptions. For example, if a new restriction to balcony enclosures is adopted by the association due to a need to protect the structural integrity of the building, the prior right to place items on the balcony will need to yield to the overriding safety considerations of the new rule. In such a case, the Board should obtain documentation of the overriding safety concerns, such as from an engineer’s report, before requiring owners to change structures that were previously allowed. Another example is if certain items are no longer code compliant, even if the equipment would ordinarily be entitled to grandfather status, the equipment should be brought up to code, if possible, or removed if rendered inoperable.
The Board should consult with counsel if it is facing issues with restrictions previously unenforced by prior boards. Association counsel can assist in reviving the restriction so that it is once again enforceable.
In authorizing electronic voting, the Legislature set forth several statutory requirements to do so, which are discussed below. As always with statutory requirements, it is important to discuss the matter with association counsel to ensure that your community correctly implements its online voting system.
First, a unit owner must consent in writing to online voting. This consent is distinct from a unit owner’s consent to receiving certain notices by electronic transmission. However, for administrative ease and efficiency, association counsel can prepare a form for your community on which owners have the option to consent to either, or to both, receiving official association notices by e-mail and to online voting together. For the owners who consent to electronic voting, these consent forms become part of the association’s official records that are open to inspection upon written request from an owner. Unlike other official records which must be maintained either for seven years or permanently as outlined in the statute, papers and electronic records relating to voting must be maintained for one year from the date of the election, vote, or meeting. An owner who consents to electronic voting may opt out later.
In addition to the consent form, the association should have association counsel prepare the board resolution authorizing the online voting system, as the statute contains several requirements for this resolution. The board resolution must provide that unit owners receive notice of the opportunity to vote through an online voting system, must establish reasonable procedures and deadlines for unit owners to consent, in writing, to online voting, and must establish reasonable procedures and deadlines for unit owners to opt out of online voting after giving consent. Written notice of a meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property or association property at least 14 days before the meeting. Evidence of compliance with the 14-day notice requirement must be made by an affidavit executed by the person providing the notice and filed with the official records of the association.
Prior to any membership vote taken at a meeting, except for the election of board directors, a specific quorum must be reached. The statute provides that a unit owner voting electronically is counted as being in attendance at the meeting for purposes of determining a quorum. Thus, setting up electronic voting and having owners’ consent to using electronic voting helps the association achieve quorum and required approvals by making it easier for owners to be “present” and to vote.
The statute dictates several requirements for the association to set up online voting. The association must provide each unit owner for a method to authenticate the unit owner’s identity to the online voting system and a method to confirm that the unit owner’s electronic device can successfully communicate with the online voting system. The method to confirm that the unit owner’s device will be able to communicate with the system must be available at least fourteen days before the voting deadline. The online system must also be able to authenticate the unit owner’s identity and to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit. The system needs to also be able to transmit a receipt to each unit owner who casts his or her electronic vote.
In addition to the above, for elections of the board of directors of the association, the association must also provide a method to transmit the electronic ballot to the online voting system that ensures the secrecy and integrity of the ballot. They system must also be able to permanently separate any authentication or identifying information from the electronic election ballot. This is so that it is impossible to tie an election ballot to a specific unit owner. The system needs to be able to store and keep electronic votes as accessible to election officials in the event that a recount, inspection, and/or review is required.
These specific requirements are found in Section 718.128 of the Condominium Act, Section 719.129 of the Cooperative Act, and Section 720.317 of the Homeowners Association Act. To learn more about how to properly set up electronic voting for your community and the statutory requirements, speak with your association counsel.
To read the original FCAP Managers Report article, please click here.
Karyan San Martano is a member of Becker’s Community Association practice and regularly provides legal counseling to the officers and directors, as well as the property manager, on the operation of condominiums, cooperatives, and homeowners associations.