Condo and HOA Questions – Answered by a Lawyer
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Q: As president of my condominium association, I believe it is time to fire our in-house manager and hire a new one. I obviously need the approval of the board to fire the manager. At the upcoming board meeting can the board go into “executive session” to authorize firing the manager? T.Z.
A: Yes. Any time a quorum of the board meets to discuss association business, a board meeting occurs. Generally, board meetings are open to unit owners, subject only to two exceptions. Section 718.112(2)(c)3 of the Florida Condominium Act states that board and committee meetings don’t have to be open to the unit owners when: the meeting is with the association’s attorney with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or, if, the meeting is held for the purpose of discussing “personnel” matters.
A board meeting held to discuss firing the full-time community association manager who is an employee of the association would fall under the statutory “personnel matters” exception to the “sunshine rules” of the statute. This means that your board can hold a closed board meeting, often referred to as an “executive session,” to discuss and act upon your motion to fire the manager.
Also remember that the contract with the manager must be closely reviewed to ensure that it is properly terminated. It is recommended to consult with the association attorney to ensure that all appropriate legal issues are considered.
Q: My homeowners’ association is holding a membership meeting in a few weeks to vote on expensive renovations to the clubhouse. I already submitted my “yes” vote via proxy. After hearing the concerns of many of my neighbors, I’ve had a change of heart. Can I change my vote? A.H.
A: Yes. A proxy can be revoked up until the meeting where the vote is taken. You have the right to execute and deliver a new proxy and change your vote. This is a reason that proxies are dated, so the association knows which proxy to use if two executed proxies are received from the same owner, the later-dated proxy will control. You can also attend the membership meeting in person, revoke your proxy and cast your vote at the meeting.
Q: A seasonal owner at my condominium regularly smokes a cigar at the swimming pool even though there is a rule prohibiting smoking there. When I complained about this repeated behavior to the board, a director informed me that the association fined this owner for these violations and that there is nothing else the board can do. I later learned that this owner pays these fines but keeps committing the same violation over and over again. Shouldn’t my board do something to stop this repeat violation? S.P.
A: Yes. Additional enforcement action is required to bring this owner into compliance and to get him to stop smoking at the pool. Whenever a violation is committed it is the obligation of the association, acting by and through the board, to notify the violator of the offense and to ensure that the violation is stopped. Failure to take this action and stop the violation is problematic for several reasons, including the fact that failure to bring about compliance will ultimately result in the association losing the ability to pursue similar violations committed by other persons.
Your board is wrong to assume that there is nothing else they can do simply because the subject fines have been paid. Fining is only one of the enforcement remedies available to the association. There are other enforcement remedies available, including the ability to sue the violator and seek prevailing party attorney fees and costs in the ensuing litigation. For this type of violation, mandatory pre-suit arbitration is presently required by the statute in an effort to adjudicate the matter short of full-blown litigation in court.
David G. Muller is a Board Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 10 other Florida cities. The Firm focuses a substantial amount of its practice on condominium and homeowners association law. Attorney Muller responds to your community association questions. Send questions to Attorney Muller by e-mail to firstname.lastname@example.org.
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