Q: The condominium documents for my association require that 75% of all members must vote to approve any amendments. The association has trouble even getting a quorum of members to attend meetings. Can the association approve an amendment based on just the vote of those members voting, or send out the vote and state that if you do not respond, you will be considered a yes vote to get an amendment passed? (T.W., via e-mail)
A: No.
If it is any consolation, many associations face the same challenge. It has been my experience that even those associations with high owner interest rarely get 75% of all owners to participate in a meeting by attending or sending in a proxy. Like yours, many struggle to even get quorums for their meetings, which is a majority under most condominium bylaws. I have observed that voting apathy is even higher in homeowners’ associations, and many of them also struggle to get quorums, even though state law sets the maximum quorum at 30% in the HOA context.
Although sometimes controversial, and there is an obvious “chicken and egg” issue to overcome, my opinion is that the best first step is to try to amend your documents so that future amendments would be passed based on the number of owners who vote (by proxy, online, or in person) at a lawfully called meeting at which a quorum is established, and that approval of amendments not be based on the entire membership. In other words, under your current documents a “non-vote” is a “no” vote, whereas non-votes would simply be disregarded if an amendment along these lines was approved.
I have worked with a number of associations who have successfully undertaken this approach, though it is often a chore. The law does state that proxies are valid for up to 90 days from the date the meeting was originally called, so there may be an “adjournment” process that could be used to try to get out the vote if you fall short when the meeting is first called. This requires that certain procedures be followed and may be dependent on the language in your own documents, so this should not be done without the assistance of an attorney.
Q: Is it a conflict of interest for a condominium association board member to be a real estate agent who sells units in the condominium? (R.B., via e-mail)
A: While there are exceptions to every rule, it has been my experience that real estate brokers and salespeople can make excellent board members. However, when rentals are involved, or when the agent tries to use their position as a director to gain an advantage over competitors, problems can arise.
People involved in the real estate business will have a knowledge of local norms for similar communities, including typical restrictions, assessment levels, and the like. If the agent is also an owner in the community, he or she has a vested interest in maximizing unit values and avoiding troublesome residents.
However, it must be remembered that condominium association directors owe a fiduciary duty to the members. Directors are legally obligated to put the interests of the members before their own personal financial interest. Accordingly, if a particular matter presents a problem, such as a closing held up by delinquent assessment payments, or a dispute as to whether a particular transfer should be approved, the agent should recuse himself or herself from involvement as a board member. In fact, I believe that real estate agents who are board members should abstain from voting as a board member on any transaction in which they have a financial interest, even though there is no money being paid by the association.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.