Validity of Ammendment Change in Question

A former board member found a discrepancy in the POA's most recent ammendment. The by-laws state that any changes must be approved by 3/4 of the members signatures. At the time of the document there were 49 lots, so this would require 36.75 signatures. One of the board members at the time was an attorney and he was overseeing the process to make sure it was done correctly. Apparently, he made a mistake. Only 36 signatures were obtained before it was filed with the county clerk of courts back in 2005. No one in the association realized the oversight until this February, in 2011, and all HOA members have been following these new rules, properties have been purchased with the understanding that these rules are in force, etc. since then.

To complicate the issue further, in 2006, one of the property owners purchased two lots and had the proper changes filed to make the two lots into one, now reducing the total amount of lots to 48. With this change, and having the 3/4 vote of 36 signatures, is the validity of the document now resolved? Are there any Grandfather laws that would make these changes stick or are there further corrections that need to be made to make this document valid? This document is still on record with the clerk of courts. It is my understanding that until this document is officially rescinded and removed from the records, it is still in force. Is that correct?

The reason this whole can of worms was opened was that this former board member was having difficulty making amendment changes during their term and consulted an attorney on how to do this. The changes this member was trying to make during his/her term did not get the proper 3/4 signatures, so I believe this was another angle to get changes made, despite the fact that a large portion of the association members are happy with the rules as written in this amendment in question. The attorney who he/she consulted found the discrepancy in the signature count. According to this member, the attorney she consulted declared this document invalid and we must revert back to the previous amendment. The previous amendment was in place before the developer sold a majority of his parcels, so the rules in that amendment are a really bad fit for the POA at this point in time. I truly believe that the fact of the parcel number changes was not revealed to this attorney when the member consulted him/her. I'm not sure grandfathering was discussed either. This member has a tendency to tell only parts of the facts to prove a point, so I would like to get a second opinion.

I would appreciate any recommendations or insights anyone can offer, or any Florida law sections specifically dealing with any of these issues. Thanks in advance.

An illegally adopted amendment can be reversed by filing a motion for summary judgement to get the amended bylaws thrown out due to state law or bylaws not being followed. This is a relatively easy motion to file with the court and an individual can do this but it is best to get an attorney to help you.
Jeanne

Lisa,

Changing lots or combining them does not alter the original platt which created 49 units (lots). There were and still are 49 so that is the number that you must use. Never, ever use percentages and if they are so stated, then a number must be also stated, example what happened to you. If it says 2/3rds percent, you state on the documents that 2/3rds of 49 units is 37 in your case. The ambiguity of percentages causes his problem all of the time.