“HOA Material Alteration Procedures Questioned” – News-Press

Q: Our HOA has been searching for information regarding the percentage required for votes to make changes to common areas when the covenants are silent. Our documents require a two-thirds vote of members for amendments to governing documents, but nothing is said about changes to the common areas. Florida Statute Chapter 718 states 75 percent of the owners must approve material alterations unless otherwise stipulated in governing documents but what is the rule on this for homeowners’ associations? (H.H., via e-mail)

A: Chapter 720 of the Florida Statutes, the Florida’s Homeowners’ Association Act contains no “material alteration provision” as is found in the condominium statute. The issue is controlled solely by the governing documents. I am not aware of any Florida appeals court cases directly on point, except one case which bounced between the trial and appeals court and focused on very general words in the articles of incorporation and bylaws.

Review of your current governing documents by a qualified attorney under the guidance of the holding of that case may yield a concrete legal opinion, or it may not. The best advice I think that can be given to homeowners’ associations in your situation is to use the general amendatory provision of the existing declaration of covenants to create a “material alteration provision.” This will benefit both the board and the membership of the community by providing certainty.

Q: I was and have remained on my condo board when the 8-year term limit rule was enacted. Can I run in 2026? (J.U., via e-mail)

A: The original amendment to the statute in 2017 stated that board members could only serve four 2-year terms. On its face, the 2017 change did not apply term limits if there were 1-year terms and did not state the look-back date for measuring term limits.

In 2018, the Legislature amended the statute to state that the term limit was intended to be an 8-year term limit, regardless of the length of board terms. To confuse matters further, the state agency which regulates condominiums issued conflicting rulings and pronouncements on the issue, originally holding the law to be retroactive to the beginning of the term of any sitting director and later reversing that position.

In 2021, the statute was again amended to provide that the 8-year term limit only applies to board terms that began on or after July 1, 2018. Therefore, July 1, 2026, is the earliest that the term limit could apply to limit a sitting board member from serving.

The current statute also states “termed out” directors can run for and be seated on the board if there are insufficient candidates to fill all open seats at the time of the election. Where there is a contested election, a “termed out” director can be also be elected if they received two-thirds of all votes cast in the election.

Let’s assume your next annual meeting will be in February of 2026. There are three possible outcomes. First, you can run, and, if elected, serve a full term because you were not “termed out” on the date of your election. Second, you can run and serve if elected, but must leave the board on July 1, 2026, creating a vacancy for the remainder of the board to fill, unless you received two thirds of the votes cast. Third, if you do not receive two-thirds of the votes cast, you are not seated to the board.

So, you are clearly eligible to run and can be seated if there are not enough candidates for a contested election or you receive two-thirds of the votes cast in a contested election. If you lose, you lose. If you are elected by a plurality but not two-thirds, things will get interesting.

I suspect that different attorneys will have different opinions on this, and that the state agency, which regulates condominiums, will be called on to adopt a position. Stay tuned.

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.