Consult attorney before rewriting documents for community
Q: In a column regarding articles of incorporation you stated, "The statute requirements are different for HOA and condominium and you cannot be both." We are in the process of updating our articles and bylaws. We are a community of 88 condominiums and 66 residential homes. Our articles of incorporation were formed in 1972 and they state we were formed as a corporation not for profit in accordance with FS 671 and FS 711. I am assuming that FS 711 is now FS 718. Our articles further state that the purposes and objects of the owners association are to provide an entity to acquire, own, administer, operate, repair, replace, maintain and manage all the common areas defined in attachments to be used in connection with the condominium and single-family residential lots. We have shared common property, buildings, clubhouse, waterways and marina. Do you have any insight on how to update the documents and/or separate the entities? We will eventually bring our ideas to our attorney but would like to do most of the preliminary work (a couple of attorneys on board) ourselves to save legal costs.
A: Yes, you are a very old community as the first condominium statute was FS 711, first approved in 1962. FS 711 was changed to FS 718 a few years later. First, recognize that you are dealing with title to each home and unit. If you modify your documents, you may alter the title. For that reason, do not modify the documents until you have talked with your attorney. You must understand also that the documents are primarily three individual, distinct sections. Each stands on its own and serves different purposes. You have the declaration that defines the property, the articles that form the corporation and the bylaws that define how the corporation is operated. You may have additional sections in the documents as each association may have supportive properties. It may be possible to break out the condominium units and the homes to form their individual associations. However, this will cause additional expenses. As an example, each year the two associations must file the annual report with the state and pay the filing fees. You will need to acquire separate insurance, maybe separate operational licenses, and maybe pay separate tax reports. Once you think about the cost of rewriting the documents and the extra costs, it may not be worth the effort.
Engage neighbors about rules violations, replacing board
Q: I live in a condominium where all the rules in our bylaws have been ignored. I thought it would improve when we obtained a management company. Not so. They too break all the rules and ignore any form of communication.
A known felon who recently moved in just announced that he will be on the board in 2011. I have received a threat to my communicating with any board member. One resident was arrested and received a restraining order preventing this resident from attending any meetings. She had to obtain a lawyer. This has got to stop.
A: I would suggest that your approach with the board should be focused on changing the directors at the next annual meeting. Condominium boards are elected by secret ballots that must be voted by each unit. This means that a majority of owners voting elect the board. If the members do not have interest in who is serving and fail to vote for the good people, they can only blame themselves.
My guess is that most of your owners sit back and let others do the work. This is the major problem with many associations. Their failure of becoming involved and volunteering will result in aggressive and nonresponsive boards. If the owners elect the felon, who is legally unable to serve, they will suffer the consequence. The owners must talk with each other to find out other points of concern. Rather than communicating with the board, maybe it would be better to talk to your neighbors and get them involved. Find out if they have the same concerns about rule violations. Then the members must volunteer to become a candidate to serve.
Management is instructed by the board. If the directors instruct management not to aggressively comply with the rules and regulations and conduct sound business policy, then that is the board's responsibility. Talking to your neighbors, getting them involved is the best way to improve the board's operations.
Original documents are legal, even though they're outdated
Q: Seven years past, the association was turned over to the members by the developer. Our covenants and documents have yet to be changed to eliminate any and all references to the developer. Though two attempts have been made to revise these documents, none have been approved and we are still operating under the original documents. Are the board of directors and our association operating legally with these outdated documents?
A: I do not recommend modifying documents even if they have references to the developer. Your documents are deed restrictions. Each purchaser has certain rights and obligations under these original rules and these were the requirements when purchased. If you change your documents it could be possible to take rights away or impose restrictions where there were none before the change. No, the original documents still require the board and members to continue to operate within the rules and regulations. They are legal documents as they are part of the title that each owner is required to uphold. Never attempt to modify the documents without legal guidance. The reference to the developer or a class that refers to the developer is really a moot problem. The legality of the original document, covenants, or rules and regulations are as valid as published when the first purchaser became an owner and the last buyer took title.
Richard White is a licensed community associations manager. Write to him at 6039 Cypress Gardens Blvd., No. 201, Winter Haven, FL 33884-4115. Please include your name and city.