FL 720 vs 617 Conflict?

This question is specific to Florida statutes.

FL Statute 720 says that "All members of the association are eligible to serve on the board of directors..."

FL Stature 617 says that "Directors must be natural persons who are 18 years of age or older but need not be residents of this state or members of the corporation unless the articles of incorporation or bylaws so require. "

Our bylaws state that "The Board of Directors shall be residents of xxxx County, Florida."

Is it permitted to have an association member run for office if he is NOT a resident of xxx County?

peter

Peter,

720 replaced 617 in the year 2000. Your association may have its original Articles of Inc filed under 617 but if you read "history" on the bottom of any 720 Statutes, you will see that there is referral to 617. CC&Rs and Bylaws should follow what 720 says.

617 was for all Not for Profit corps when originally written and there were no parts of it specifically designed for HOAs until 2000 when 720,(HOAs) 718 (condos) and 723 (mobile homes) were written.

Yep, Peter, just looked it up..

In this instance 720 prevails.. you cannot restrict the Board members living in the county where the community is located.

Donna & Petunka

You have just said exactly the opposite things... Or am I confused.

The Statute does or does not prevail over our Bylaws?

peter

Petunka,

The Statutes do not address residency issues. Please show me if you have found something to that effect. YES, The Statutes are the heirarchy IF there is nothing in the documents of the association AND /OR if the Statutes gives the authority to the governing documents.

617: Allows a non-member to be on the BOD but it also permits the By-law to restrict board members to be residents of the STATE (not the county where the community is located).

The part I'm reading adds "unless the articles of incorporation or bylaws so require". My Bylaws require that the director be a resident of the county. This seems in line with the 617 exemption.

Check 617.0802(1)

peter

Peter,

As I said before 617 & 720 are not in conflict. You can marry 617&720. You can restrict the board of directors to be members although you do not have to. However, you cannot stop any association member from running. You can restrict anyone serving on the board to be FLORIDA resident although you do not have to.
But you cannot restrict the board members to live in the county or, to live your community. The law does not allow it. The only restriction the law allows for is to be Florida resident.

Here it is:
‘Directors must be natural persons who are 18 years of age or older but need not be residents of this STATE or members of the corporation unless the articles of incorporation or bylaws so require.’

In your instance Chapter 720 prevails until your By-laws are amended to restrict the board members to be Florida residents (not county residents). Sorry, I do no know how to explain it any better.

Peter,

Let’s look at this scenario describing 'Quorum requirements:

Florida 720. Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

Chapter 617: (1)(a) A corporation may have one or more classes of members or may have no members. If the corporation has one or more classes of members, the designation of such class or classes, the qualifications and rights of the members of each class, any quorum and voting requirements for meetings and activities of the members, and notice requirements sufficient to provide notice of meetings and activities of the members must be set forth in the articles of incorporation or in the bylaws.

Our By-Laws : ‘A quorum of the members shall consist of those persons entitled to cast a majority of the votes of the entire membership’

Question: We have 52 voting members. What constitutes 'quorum' in our case?

Petunka - are you sure you haven't left anything out of the way you stated the quorum requirements of your by-laws?
The way I am reading what you wrote, you couldn't have a members' meeting unless everyone (all 52) are present ( I'm guessing - either in person or by proxy).

Petunka - are you sure you haven't left anything out of the way you stated the quorum requirements of your by-laws?
The way I am reading what you wrote, you couldn't have a members' meeting unless everyone (all 52) are present ( I'm guessing - either in person or by proxy).{Carol]

Our By-Laws : ‘A quorum of the members shall consist of those persons entitled to cast a majority of the votes of the entire membership’.

Carol, it is one of those sentences one has to read a couple times to get its true meaning. What that sentence really says is that a MAJORITY of voting interest is required to constitute a quorum - which would be 27 members. Yes, in person or by proxy.

26 would be half and 27 would be the majority of 52. (DONNA)

Donna, true, 27 members is the majority. Are you saying we need 27 members to constitute the quorum?

Peter,

This is copied from the front page of my Fl. HOA which was incorporated in the year 2000. That is the year that 720 appeared. We are incorporated (Articles of Inc.) under 617 but follow Statutes 720 and this is the explaination why.

"This is a copy of the complete state law SS720 referring to Homeowner's Associations. This part of the law deals with how associations must act. The 617 laws, referred to in the notes, deal with non-profit corporations and how they govern themselves. 617 does not deal with how an association must deal with its homeowner members. "

Petunka,

I don't see where Donna specified or implied that 720 replaced 617. From my reading of the section she cited, her Association was explaining how both would apply.


Based on what has been posted, a quorum would be a majority of those entitled to vote. Determining the number of lots allowed to vote will be based on the governing documents of the Associations and the actions taken by the Board.

In my Association, someone not in good standing (behind in assessments)might not be entitled to vote. However, it is not automatic, our Board must vote on removing the right to vote [our board has proposed making it automatic].

@ donna
Before the year 2000 Fl § 720 did not exist numerically but it did exist. It was Fl § 617.301 to 617.312. In 2000 617 was split. If you notice 720 starts with 720.301. They just took 617.301 - 617.312 and renumbered it to 720.301 and on. In fact in 1999 this was the actual heading for 617.301 Homeowners' associations; definitions. Everything from 617.301 on specifically covered HOA's

The state renumbered because condos already had Fl § 718 for a while and the thought was if condos have a statute then HOA's should have their own statute too.

@ PetunkaM
I see your point and that is what I love about this site. Two people can read the same sentence and have two different opinions about it. SO you have made me go hmmmmmmmm?

I don't understand where the quorum number is coming from. I was under the impression that fl statutes trump bylaws. The statutes says "unless a lower number is provided in the bylaws." I took this to mean you can have a lower number represent a quorum but you even if your docs state the majority have to be present either by being there or proxy then you have to differ to the Fl statute of 30%. Our docs state 60% have to be present for a quorum but out PM has told us that Fl statute trumps and there only have to be 30% for a quorum. Who is right?????????

Thanks Tim,

From my above post, this is how it all happened in 2000.

617 was for all Not for Profit corps when originally written and there were no parts of it specifically designed for HOAs until 2000 when 720,(HOAs) 718 (condos) and 723 (mobile homes) were written.

This is not my interpretation of what these Statutes are but in fact, what they are in really plain English.

P -

Thanks.

Difference between FS 617 and FS 720

Q: Can you explain the difference between FS 617 (short title, Corporations Not for Profit) and FS 720 (short title, Homeowners' Associations)? You said the confirmation I need is FS 720 for our HOA operations and not FS 617 as primary operational statute.

A: All associations should be formed as a corporation per your articles. In Florida, the two types of corporations are for profit (FS 607) and not for profit (FS 617). FS 617 does not mean "nonprofit," and therefore tax-exempt, nor does it mean that under FS 617 the corporation cannot involve profit enterprises. Think of the way the corporations are formed and operate.

If you go back several years you will find that HOAs operated under FS 617.300 (plus), which meant that they were formed and operated within FS 617 statute. The state split the FS 617 into a separate statute and formed FS 720, the HOA Act. If you note that the first section of FS 720 starts with the 300 numbers, it only indicates that the HOA Act continues in the same form as before the splitting of the statute. All HOAs should operate within the requirements of both statutes.

So the question is WHERE THERE IS A DIFFERENCE BETWEEN 617 and 720, which would be the prevailing Statute? I do not wish to see a guess but written answers from an expert.

AND THE PLOT THICKENS. This makes real food for thought. OMG, imagine what this case has opened up. "http://goldenlakesvillage.wordpress.com/2011/04/08/new-supreme-court-case-may-limit-how-f-s-718-f-s-720-apply-to-phase-b-of-golden-lakes-village/

You are so right Bruce.

Donna,

Let’s look at it from the opposite way. Let’s assume I want to ease the By-laws and allow one non-member to serve on the BOD. If our Articles state that only members can run, we would have to amend the Articles first. Then we would amend the By-laws. Still, we would comply with Chapter 720 which only states that you cannot preclude any member to run for the Board..

DonnaS,
With all the respect you always have the best of intentions on helping others and indeed knowledgeable. But I was one that you confused stating many times that FL 720 replaced 617. "P" clarification is appreciated.
I am grateful to both and all, the goal is to teach and learn with the intention of helping others, I hope.
Thank you,

Islam,

I have been reading these posts only for a short while and it saddens me to learn how many HOAs have problems with these docs. Plus, once you plow through the ‘unless, shall or may’ the docs may lose their integrity anyway. The laws should be clear(er) particularly if there is no agency overseeing HOAs. More ambiguity in these docs more $$ attorneys get. It simply is not fair. As a result, many smaller associations ignore these laws and do what they ‘think’ works for them or, what they can get away with.

I really wonder if anyone here has ever done a survey to determine just how many members have even read those documents? One may be surprised to learn that even some board members have not read them.

F.S.720.302(5) states"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."
This is the law as of 2011
Thus if the HOA was incorporated under Chap 617 it stays in Chap 617, and is also subject to Chap 620. It is improper to say Chap 617 is "out of it"

James,

Chapter 607 of the Statutes is for Partnership corporations and not applicable for HOA's

Carolyn,

the case discussed in this post was NOT about a conflict between 617 and 720. It was a conflict between certain By-laws and Chapter 617.