Tenants and HOA meetings

Stewart,

For our Association, if a tenant makes the effort to show up at a meeting, we do allow them to speak. We also allow any tenants who are willing to serve on committees.

The Association doesn't encourage or discourage tenants from being actively involved. If it happens, it happens. If it doesn't, then it doesn't.

Stewart,

Our By-laws do not allow non-members to be on the Board nor do we allow tenants to attend the meetings. Is it a good idea to let tenants to attend the BOD meetings in the situation like ours? I truly do not think so.

Not, without having a limited power of attorney authorizing the tenants to attend. Please keep in mind, the BOD represents the owners not the tenants. If the owners will want their tenants to ‘have a voice’ in the Association management issues let them decide but you cannot make that decision alone. Some owners may agree and some may not.

‘Florida law only grants rights to owners/members. It does not FORBID such participation by non-members/owners, so allowing it would not be in violation of any state statutes.. ‘ (PEter)

Peter,

I truly disagree. The word ‘member’ is written all over the place. The Florida statute clearly states ‘members’ meetings and the ‘members rights to speak at the BOD meetings. It also states that the Association may and I quote: ‘ adopt written reasonable rules expanding the right of MEMBERS to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak... etc’

‘So long as the meeting is not 'diluted' by such I see no problem. But some type of uniform rules/procedure should be followed to prevent such from becoming non-productive or overly lengthy.’

Now, you are suggesting to modify the By-laws or some rules under which circumstances non-members can speak and which meetings they can attend? Please would you let me know how you envision to do that? In some instances, the members must be notified 14 days in advance when monetary issues are discussed at the BOD meeting. Is the Board now going to be obligated to notify the tenants also? How about the membership meetings? And, there are other issues I donot want to go into at this point.

But... what is wrong with letting tenants attend?... What is wrong with letting tenants speak?.. especially if they are close to a majority. It seems there would/could be fewer issiues by 'hearing them out'.

As I said before, there would not be nothing wrong with letting tenants to attend any meetings providing they receive a limited power of attorney from the owners to represent them. Until then, it is just opening a Pandora box . And let me close it with saying that none of the absentee owners in our Association would allow their tenants to speak on their behalf and any meeting without such a power of attorney.

This, of course, does not mean the tenants should not be invited to the Association parties or participate in other NON-business activities.

Yep, I gathered you would.
I guess we will again have to agree to disagree.

People with no financial stake or investment in the community being influential in the community.....Hmmm

No. I just think that you are the one not translating the law correctly.

I am saying that if a non-member actually shows interest in the Association there is typically nothing in State laws that prohibit non-members from attending meetings or being allowed to speak.

This forum has seen many governing documents that do limit meeting attendance to just members but the laws do not (at least none that I have seen).

If one were to interpret that section of FL 720.303: "All meetings of the board must be open to all members . . ." as limiting board meetings to only members of the Board and members of the Association then the Board would not be allowed to invite vendors or other people that provide services to attend the meeting and prohibiting invited guests to the meeting just doesn't pass the common sense test.

A Board could pass a blanket policy that allows tenants to attend the meetings or make the decision on a case by case basis. Personally, I believe that it should be a case by case basis. I also believe that, similar to membership apathy, tenant apathy will be extremely high and most won't show any interest anyway.

Tim, let's forget about it. In this instance you are just making this stuff up.

Actually, Tim, I am surprised that we disagree on THIS issue.

My 2 cents...That anyone can attend a meeting if they choose. However, if you don't have the voting rights, then you can't run for a board position, participate in special member meetings, or participate in actions requiring a membership vote. This doesn't mean you can't participate in a committee or volunteer within the community. Just know you do those thing with limitations.

Homeowner's association to me, means owners in association with eachother to form a colloroboration interested in maintaining the areas common to all and with same interest. So when I see that "Non-members" can participate in HOA business I relegate that back to when the developer ran the property and NOT the homeowners. When the developer operated the HOA, there would indeed be non-members involved in the operations and on the boards. However, once the developer turns over the HOA to the actual owners/membership, then this reference should be struck in the documentation. That is because there shouldn't be non-members involved. This includes the PM as they are contractors to the HOA.

I don't believe any person walking down the street who admires a house, can go in and attend a meeting. There should be an interest and purpose for their involvement. So to say non-members can attend meetings should acknowledge the relationship to the HOA they have. I'd want to know who is truly a member and those whose attendance is just because they reside there.

Tim,

you are switching your thoughts on me. We are NOT talking about inviting a guest to speak. We are talking about tenants representing owners!

Let’s review what Stewart says, again:

'This might seem rather bizarre but we are an association of 160 homes,it is fast becoming that tenants will be the majority of residents,personally I would like the tenants to have a voice at our meetings,simply because I feel if you involve everyone they are more likely to feel part of what the Board is trying to do.'

NOTE: Does this say to you that Stewart wants the tenants to be involved or be aware in all business decisions the BOD is making? It does to me.

'However there is oposition to my opinion,thats fine but I would like to know if any other association allows tenants to speak at meetings and if so do you have restrictions,i.e. they cannot vote or they cannot be on the board etc.If you have recently allowed tenants to speak,what statute did you use or wording for rule changes. '

NOTE: First, no one can vote at the BOD meetings except the directors. There is no statute I know of to allow tenants to speak. The statute permits only members to speak and even that provision is just recent. In previous years no member could even beep at the BOD meeting.

‘My idea would be to allow tenants who have absent landlords (never come to meetings and have no intention of)to have a full proxy signed by them selves and their landlord,transferring rights to speak,vote and possibly serve on the board in their stead,what do you think??’

NOTE: I have answered that question several times. It is not the proxy you need. First, a tenant needs a limited power of attorney to represent the owner which would permit him/her to attend all the meetings and to speak on owner’s behalf. Only then, the owner can give his tenant a proxy to vote at the membership meetings.

If Stewart wants non-members to serve on the Board he must amend the Articles and or By-laws or both.

My recommendation would be to have one limited power of attorney form and send it to all absentee owners asking them to sign it if they want the tenant to speak on their behalf at the meetings. And, when it comes to voting on important issues, such as amending documents or money or audits or what ever then the owner can issue either limited or general proxies or whatever you use and give them to anyone they want to. But the voting material would be send to the owners, not the tenants. Unless the power of attorney form transfers all rights to the tenants which is NOT a good idea.

OK, I got curious and searched other opinions. Here are a couple, perhaps you can find others:

Daniel Vasquez, Sun Sentinel, Florida

Louis lives in a Deerfield Beach homeowners association which recently held a community meeting but not before warning that only homeowners and board-documented guests would be allowed to attend, not non-owners.
Louis wants to know if it’s legal for a board to ask non-owners to leave a meeting?

Florida Statute 720.303 (2) (a) says:
A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege.

The statute does not extend the priveledge to non-members. Members are considered to be unit owners and would appear on the deed to the unit. The same rules and definitions apply for condos.
__

R. M. DeNichilo, Atty , California

California homeowners associations have to look to their governing documents. "Board meetings are subject to the open meeting act," says Robert M. DeNichilo, an attorney at DeNichilo & Lindsley LLP in Irvine, Calif., who specializes in representing community associations. "California statute says members are entitled to attend, so members have to be allowed unless it's an executive session. California law doesn't define members, but they're typically defined in governing documents as owners of a property. So look at your governing documents to see if they define who's a member.
"For example, if tenants want to attend, I'd say no because they're not members," adds DeNichilo. "We've had situations where renters want to show up or even attorneys for a member. We typically will say, 'No, the meeting is open only to members,' and we've asked them to leave."
___

Michael Chulak, Attory California

Q.
The board of directors of our homeowners association will not permit renters to attend board meetings. Can they legally do this?
A.
Yes. Civil Code Section 1363.05 permits owners to attend board meetings other than executive sessions to consider litigation, contracts with third parties, member discipline, or personnel matters. The code does not authorize renters to attend.
Notwithstanding the Code, a board may permit renters to attend board meetings and it is generally a good practice to allow them to attend, assuming they act appropriately. It is also a good practice for a board to have a sign in sheet at all meetings in order to account for all people attending. Top

why the big deal if non-members attend a meeting? what is so exclusive about a meeting that they shouldn't be allowed to attend? BTW I am not a lawyer but i have seen nothing in the Florida law's that have been presented that prevent a BOD from letting a non-member ATTEND a meeting.

I actually think some very positive things could come out of it. If the non-member feels a part of the community they are more likely to take pride in the appearance of the property they rent. They may also have some very good ideas. As I posted earlier we had a non-member who is a property manager who gave us some great questions to think about as we were going down the road of hiring a management company. Her questions were so compelling we tabled a vote to gather some more information and glad we did.

I agree they can't vote but why not let them attend.

I have read the replies and opinions with great interest,clearly there is an issue between state laws also,the reason I believe tenants should be allowed to speak and be on the board is because we have just as many bad owners who violate rules as we do tenants,in fact probably more,as the Sub Division gets more tenants I suggest that we will be alienating residents (forget homeowners or tenants)therefore attendees at meetings will fall,pride in the community will diminish and then what is now a well kept community is in danger of imploding!

Stewart,

I can understand the desire to include tenants in the community discussion due to their large numbers. However, your HOA has no fiduciary interest with them. You can only address matters with the property owners, good or bad, because the owner carries the responsibility to the HOA. Liens are placed against owners, not tenants. Tenants will NEVER pay for property damage caused to the HOA because the landlord/property owner is responsible.

I do not buy into the notion that "Rent pays the dues" in a direct sense.

You're essentially giving neighborhood power to residents who do not tangibly contribute to your business operations. Simply being mindful of the property is an inherent responsibility and should not result in special consideration.

I own some rental property and would never settle for my tenants having final say and influence over the fees I pay into to an organization.

No we are not, at least I'm not. This might be why we have differing opinions.

The owners represent themselves unless they provide a proxy representative or a representative with a limited power of attorney.

We are talking about the level of non-owner participation in an Association.

The tenants are residents of the development who most likely will show less interest in the Association workings then the members. However, if an Association is lucky enough to have a tenant interested enough in the Association then it's up to the governing documents and/or board on how that tenant might participate.

Peter, Tim and Bruce,

I am sorry we disagree on this issue but our attorney insists that no member has the right to attend the BOD meetings without a power of attorney. This morning I found another legal opinion by the Florida attorney who interprets the law in the same way as our attorney. You may want to disagree with him also, but this is the way they read the statute. If you find any legal opinion for Florida which differs from this one, please let me know.

J. Adams, Attorney, Becker and Poliakoff May 11, 2006

Question: I am the president of a small condominium association. When we hold board meetings, every unit owner is able to attend and participate in all discussions so their views are expressed. If there is an issue that requires a vote, the board votes on that issue and then moves on to the next issue. We have one unit owned by an individual who lives in New York. This owner’s nephew lives in the unit and attends the board meetings. The nephew has stated that he has a “Power of Attorney” to act as a unit owner, even though an actual “Power of Attorney” has not been presented to the board. Can the nephew express his views as a “unit owner”, and are there any special requirements that must be fulfilled before he can act as a “unit owner”? S.M. (via e-mail)

Answer: As you know, unit owners have the right to attend all board meetings (except for board meetings with the association’s attorney regarding proposed or pending litigation) and to speak at such meetings. This statutory right is only given to unit owners. However, I believe that a non-unit owner appointed under a duly executed power of attorney is entitled to attend board meetings, and to exercise other rights of the owner such as the ability to speak and participate at such meetings.

In your case, the owner’s nephew has not produced any valid power of attorney, and until he does I do not believe he has the right to attend or speak at the board meetings. Your board might want to advise this individual that he needs to produce the power of attorney that he claims gives him these attendance and participation rights.

If a power of attorney is produced, you should have the association’s attorney review it to make sure it is properly executed and that the powers given in it allow the unit owner’s nephew to attend and participate in the board meetings.

Additionally, your association’s bylaws may contain language that limits power of attorney rights. Therefore, you should review your bylaws to see if they address this matter in any more detail.

Petunka,

The legal opinion you posted discussed rights of non-member. Just as Bruce has posted, I never posted that a non-member had a right to attend a board meeting.

All I'm saying is that a Board may allow a non-member to attend and speak at a meeting (as a guest) if the Board so desires. As you pointed out, the law does not extend a right for non-members to attend meetings. However, it also does not prohibit non-members from attending. That discretion is left up to the Board.

Petunka,

You stated:" I am sorry we disagree on this issue but our attorney insists that no member has the right to attend the BOD meetings without a power of attorney." (I'm sure you meant non-member)

We all agree with respect to the word 'right'.

But because "The absence of proof is not proof of absence" it does not mean that it cannot be allowed if the MEMBERS approve. It's the members' corporation and their RIGHT to do so if they choose as it is not forbidden by Fl. law.