“’Material Alteration’ Voting Explained,” News-Press

“’Material Alteration’ Voting Explained,” News-Press

Q: How can a condominium “material change” be approved? Who approves it, the board or the property owners? If several items are being altered, must each item be listed separately or can it be a single vote lumped together as one? (A.J., via e-mail)

A: The voting required for material alterations or substantial additions to the common elements of a condominium depends on several things. The Florida Condominium Act provides that if the declaration of condominium does not specify the procedure for material alterations, 75% of the total voting interests of the association must approve. There is usually one voting interest per unit.

In my experience, most declarations authorize the board to approve material alterations up to a certain financial amount, either a set dollar amount or a percentage of the annual budget. If the material alterations exceed the noted financial cap, then a membership vote is typically required.

Each material alteration or substantial addition to be voted on must be individually listed. However, there is nothing in the law that would prevent them all being presented as a single “up or down” vote. However, unless the projects are inextricably tied together, this would not seem to be the best approach as the association could fail to get the required vote because different people might be against individual projects, but not the others.

Q: Our homeowners’ association bylaws don’t have term limits. Can the board adopt term limits without going through the whole process of amending the bylaws? (R.G., via e-mail)

A: In my opinion, no. Although the Florida Homeowners’ Association Act does not provide for term limits, it does not specifically preclude them either.

Section 720.306(9)(a) of the statute provides that the election of directors must be conducted in accordance with the procedures set forth in the “governing documents” of the association. Although rules are part of the governing documents, since the bylaws are the document that generally set board terms, that is the document that should be amended. Although there are exceptions, most homeowners’ association bylaws require a vote of the members (i.e., the homeowners) to amend them.

The statute also says that all members of the association are “eligible to serve on the board” except those that are delinquent in the payment of a monetary obligation to the association or have been convicted of certain felonies. For this reason, some argue that term limits are not permissible even if found in the bylaws. The courts have never addressed this issue and it remains an active debate. By contrast, the condominium statute specifically permits term limits, in addition to the eight-year term limit in the condominium statute itself.

Term limits reduce the potential for the same group of individuals making decisions year-after-year and allow for the infusion of new ideas and energy on the board. However, sometimes the best directors are the ones who have been involved on the board for several years and have great institutional knowledge of the issues facing the community. Many communities also face an acute lack of interest in serving on the board.

Q:  My condominium fees include cable and internet. I am not using those services. Why do I have to pay for something that I’m not using? What happens if I refuse to pay for it? (T.S., via e-mail)

A: Many declarations of condominium specifically provide that the cost of such services obtained pursuant to a bulk contract is a common expense. Even if the declaration does not provide for the cost of such services as a common expense, Section 718.115(1)(d) of the Florida Condominium Act states that the board may enter into such bulk contract, and the cost of the service will be a common expense.

If you refuse to pay for a common expense, enforce payment through lien and foreclosure proceedings. There is a provision in the same statute permitting certain disabled persons, as well as individuals receiving certain types of governmental financial assistance, to opt out of the services and not be required to pay for them.

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.