CCR amendment process - Florida

Florida HOA. We are “attempting” an amendment of our CCRs.
Our CCR states: …amended by…not less than seventy-five (75%)...of the members. Beyond that the CCR is silent, nothing about the process. F.S. 720.306(1)(a) states: …decisions that require a vote of the members must be made …in person or by proxy at a meeting at which a quorum is attained.... Then our By-Laws give us the required amount for a quorum at the membership meeting. Ballots will be good for the membership meeting and they will have that date on them. We will make sure that the ballot is legal. So going by the above, seems pretty straight forward.

But here is our problem. Our board president insists that it be done by petition, that the membership meeting is not necessary, just hand the signature in to the board, and that we have 60 days from the time we get the first signature to the last signature and if we go one day beyond, the amendment fails. Granted this might be easier, but would it be legal.

Now I’m thinking it is not a petition, I am sure we must hold a “members meeting” as the legal venue to count and record the ballots. My logic is: Members cannot vote at board meetings so how can that be the proper venue to count/record a legal vote/ballot by members.

And finally I cannot find any backup in any of our documents or FS 720 about this 60-day limit regarding the collecting of the “ballots.” They refuse to share where this information is coming from. Does anyone know anything about this? I think they are confusing the 60-day limit that a board has to react to a petition. If I read FS 720 correctly, ballots are good for the stated date of the meeting or 90-days after if the meeting is postponed. Or they are confusing the 60 days with a mailing date before an annual meeting. I'm not sure what they are referring to. If it is in some other statute that would limit the time in front of the meeting and apply to an HOA, I’ll accept. And if I’m wrong about the petition-like process, I’ll accept. Just point me in the right direction to have the backup in the file. Maybe I just missed it somewhere in the statute?

Brenda,

I am not sure Janet and I would agree but our Association has used the provisions of 617.0701(4) which allows membership consent to corporate actions without a meeting. Our attorney told us we were authorized to ammend our Declaration if we followed the provisions in this statute exactly.

617.0701
(4) Unless otherwise provided in the articles of incorporation, action required or permitted by this chapter to be taken at an annual or special meeting of members may be taken without a meeting, without prior notice, and without a vote if the action is taken by the members entitled to vote on such action and having not less than the minimum number of votes necessary to authorize such action at a meeting at which all members entitled to vote on such action were present and voted.
(a) To be effective, the action must be evidenced by one or more written consents describing the action taken, dated and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the corporation to its principal office in this state, its principal place of business, the corporate secretary, or another officer or agent of the corporation having custody of the book in which proceedings of meetings of members are recorded. Written consent to take the corporate action referred to in the consent is not effective unless the consent is signed by members having the requisite number of votes necessary to authorize the action within 90 days after the date of the earliest dated consent and is delivered in the manner required by this section.
(b) Any written consent may be revoked prior to the date that the corporation receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the corporation at its principal office in this state or its principal place of business, or received by the corporate secretary or other officer or agent of the corporation having custody of the book in which proceedings of meetings of members are recorded.
(c) Within 30 days after obtaining authorization by written consent, notice must be given to those members who are entitled to vote on the action but who have not consented in writing. The notice must fairly summarize the material features of the authorized action.
(d) A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

Brenda,

I agree with Janet that it is anyone's guess how courts would rule on this issue. Here is the authority for 617 to apply. It really helps to clarify existing law! lol
720.302
(5) Unless expressly stated to the contrary, corporations that operate residential homeowners’ associations in this state shall be governed by and subject to chapter 607, if the association was incorporated under that chapter, or to chapter 617, if the association was incorporated under that chapter, and this chapter. This subsection is intended to clarify existing law.

Brenda,

It is complicated legal language. We were told it ment, that you must have the same number of written consents as would have been needed at any meeting you held where if all members who had a right to vote attended the meeting voted and authorized the action. In other words you would need what ever percentage your documents require to authorize an amendment using the total voting interst of your association.

As I said we did use this process in 2000, with the advice of attorney to amend our Declaration.

Good luck,
Carolyn

Hi Brenda:

Per Carolyn's posting of:

720.302
(5) Unless expressly stated to the contrary, corporations that operate residential homeowners’ associations in this state shall be governed by and subject to chapter 607, if the association was incorporated under that chapter, or to chapter 617, if the association was incorporated under that chapter, and this chapter. This subsection is intended to clarify existing law.

It appears that in Florida the Corporate statutes would potentially supersede the HOA statutes unless expressly stated to the contrary, so be sure in your governing documents there is no statement regarding said control. That is the only issue which had me concerned because in Colorado the HOA statute controls and I was not sure about FL.

Yea, that's what I thought.

Good luck to you.

Brenda,
We were incorporated under 617. As Janet can confirm from some of my other posts, just because an attorney tells you something there are other who will give a different opinion. Use caution if you have anyone challenging your process!

Take care,
Carolyn

Hi Carolyn:

Attorneys can definitely vary especially depending on which areas they have more expertise or experience. However, 720.302 which your attorney pointed out as maybe using in the situation for your association IMO is ambiguous. The following statute is definitely not ambiguous and which absolutely states 720 “shall” apply for any conflicting area.

 617.1703 Application of chapter.— In the event of any conflict between the provisions of this chapter and chapter 718 regarding condominiums, chapter 719 regarding cooperatives, chapter 720 regarding homeowners’ associations, chapter 721 regarding timeshares, or chapter 723 regarding mobile home owners’ associations, the provisions of such other chapters shall apply. The provisions of ss. 617.0605-617.0608 do not apply to corporations regulated by any of the foregoing chapters or to any other corporation where membership in the corporation is required pursuant to a document recorded in the county property records.

I would agree pursuant to the above statute with Brenda’s decision to go with 720 and their governing documents. Sometimes unambiguous statutes can be better than paying for an attorney and definately alot cheaper.

Janet,

Carolyn is correct in her statement about 720 being the governing statutes to follow. If you read carefully, the 617 (not for profit) statutes, the words most often used say---"UNLESS THE GOVERNING DOCUMENTS STATE") 617 were the original statutes for HOA's before the year 2000 when the oh so wise State of Florida wrote individual statutes for condos, stand alone homes, mobile home and time share developements.

Reading all of those, you will see "ref-617 202" or whatever statute was used prior to the writting of the individual new statutes. 617 is for ALL non Profits, including charities and thos non profits. That is why they wrote 720 in your case.

Having said that, petition for an amendment change is not allowed. Proposed amendment changes come from a vote of the membership. Written amendment changes must be mailed 14 days prior to the vote to all of the members. Votes must follow the percent of positive votes to pass and be enacted. In your case, it is 75% of the total members, not 75% of members at a meeting. Any amendment change becomes effective only after it is filed in the Clerk of XXX County's office.