How to Amend CCR's / By-Laws in Florida

Started by EdG1 • 18 replies • 2138 views

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EdG1 (Florida)
Posts: 14

Posted:

Our HOA has committed our Community to a $650,000 - $750,000 Clubhouse Expansion/Renovation ! Our Covenants/By-Laws give us, the homeowners, no recourse
but to amend our docs, and / or petition by re-call, the present BOD. Will we have to totally re-write our doc's, and re-file,.....or, can we amend
by section ? The Fl.720 statute appears to give the BOD the 'power' to indebt the homeowners into 'oblivion' !! Surely, there is 'balance' somewhere
on the legal scale for those of us in the majority, w/o costing us a fortune in attorney and filing fees !!

NancyG3 (North Carolina)
Posts: 342

Posted:

Hi Ed - My question is do you mean by "HOA" the Board of Directors (Officers)of your Association? If you mean the Board my suggestion would be to go to the next meeting and make inquiries as to why this would be necessary. Then ask for a copy of the financial audit to see exactly how much money the Association has on hand. Was this clubhouse expansion/renovation listed on the Boards Budget or discussed at any of their meetings? Are there any other homeowners asking questions about this? Are you still under Developers control? You may have to go door to door and get the other homeowners involved even get a petition signed to stop the process until more information is collected. I'm not familiar with Fl statutes but there are a couple of men on this site that I'm sure will be sending you more information. You need to find out more information from your Board why they think all this is necessary. Good luck.

NancyG3 (North Carolina)
Posts: 342

Posted:

Ed read this thread "President refuses to follow Fl 720" This has a lot of information that may help you.

EdG1 (Florida)
Posts: 14

Posted:

Nancy - The terms HOA/BOD are synonomous for our Bd. This project came 'out of nowhere' from a community survey some year ago, when presented to the BOD in June. Our CCR's/By-Laws were re-written 2 yrs. ago after our transition from the developer. Unfortunately, in hindsight,they were not written
to include any spending caps, nor reserves for capital improvements. We do have a "special assessment" section that defines an amount that cannot be
exceeded, and which requires a 2/3 majority approval, however, the BOD has 'side-stepped' this, and will include the capitalization of the project
in the 2013 and 2014 budgets. These 'gestapo' tactics of the BOD are against the majority of the residents, and has put us in a 'scramble' to gain
financial control of our 567 unit development. Thanks for your reply.

NancyG3 (North Carolina)
Posts: 342

Posted:

Ed - When the Board includes the capitalization of the project in the 2013 budget, do they ratify the budget. If they vote to ratify the budget this may be the time to get all the homeowners together to vote the budget down and advise the Board what they have done is not in compliance with the By-Laws. You may have to get some legal advise on exactly how to handle this. In NC the budget is to be ratified and if it isn't the statue states the increase does not have to be paid until it is ratified by the homeowners. This may be another suggestion to check into you State laws as they override your CCR's and By-Laws. If Incorporated, check the State incorporated statues. Sure would be nice to hear from the fellows in Florida that are on this site. They have a lot of information regarding this matter.

EdG1 (Florida)
Posts: 14

Posted:

Please,...if anyone w/ Fl. experience in dealing w/ the amending of their doc's, we here in Sawgrass would certainly appreciate your experience and direction before we
wastefully spend our monies on non-specific legal assistance. Thanks - Ed.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

ED

Is this about a new/expanded clubhouse for a golf course complex (a money making venture) versus just a residents clubhouse?

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By EdG1 on 09/12/2012 5:10 AM
Nancy - The terms HOA/BOD are synonomous for our Bd. This project came 'out of nowhere' from a community survey some year ago, when presented to the BOD in June. Our CCR's/By-Laws were re-written 2 yrs. ago after our transition from the developer. Unfortunately, in hindsight,they were not written
to include any spending caps, nor reserves for capital improvements. We do have a "special assessment" section that defines an amount that cannot be
exceeded, and which requires a 2/3 majority approval, however, the BOD has 'side-stepped' this, and will include the capitalization of the project
in the 2013 and 2014 budgets. These 'gestapo' tactics of the BOD are against the majority of the residents, and has put us in a 'scramble' to gain
financial control of our 567 unit development. Thanks for your reply.

Ed,

We have exactly the same situation but with a price tag of $12 MILLION for two new ski lodges that we don't need. Our By-Laws require Membership approval for large projects. However there is a loophole that states that a vote is not required if the funds have been previously accumulated. The Board started accumulating funds five years ago with minimal notification.

The only thing that can be done, short of legal action, is to change the By-Laws to remove the loophole.IIRC, it would require a 50+% of the 6,400 properties which would be impossible as we barely get the approximate 1,500 votes for a quorum for our general election. It must be good to be the king(s)

Paul T

EdG1 (Florida)
Posts: 14

Posted:

This is the Community Clubhouse. We are not a Country Club Community.
Thanks for your reply. Ed.

EdG1 (Florida)
Posts: 14

Posted:

Paul T - We transitioned 2+ yrs. ago, and at that time, there were no reserves
for cap. improvmts., nor spending caps for the BOD. The arrogance of these 5
board members is 'over the top', using the term 'sole authority' in whatever
correspondence we receive! Surely to goodness, we members should have amend-
ment rights,.....but as I read our doc's, all amendment issues must have prior BOD approval ! Cart is certainly before our horse here !!

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By EdG1 on 09/16/2012 7:17 AM
Paul T - We transitioned 2+ yrs. ago, and at that time, there were no reserves
for cap. improvements., nor spending caps for the BOD. The arrogance of these 5
board members is 'over the top', using the term 'sole authority' in whatever
correspondence we receive! Surely to goodness, we members should have amend-
ment rights,.....but as I read our doc's, all amendment issues must have prior BOD approval ! Cart is certainly before our horse here !!

In addition to a 50+% vote we also need Board approval for the vote to be offered. We just had a general election and missed getting control back by about 70 votes out of about 1,600. Maybe next June? I sent a letter to the California State Attorney General's Office. They suggested that I hire an attorney as they cannot take action against our HOA. Of our approximately 6,400 properties, about 80% are part timers, who, in my opinion, have their biggest concern being "can I get a towel at the pool?" The Board has effectively shut off any pro active member to member information exchange. One of our Directors said publicly, "Members get to vote once a year in the General Election"

Paul T

JohnC46 (South Carolina)
Posts: 14,265

Posted:

ED

Based on your description, it seems the BOD has the abiltiy to do as they plan. While I rarely recommend one lawyer up, it seems the only way to stop/delay this project is for you and other owners to put your money up and hire an attorney to look at the situation.

If you can delay it and enough are against it then this delay might buy time to change the BOD come election time and reverse the decision.

Otherwise...lay back and relax.....LOL

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By JohnC46 on 09/16/2012 8:01 AM
ED

Based on your description, it seems the BOD has the abiltiy to do as they plan. While I rarely recommend one lawyer up, it seems the only way to stop/delay this project is for you and other owners to put your money up and hire an attorney to look at the situation.

If you can delay it and enough are against it then this delay might buy time to change the BOD come election time and reverse the decision.

Otherwise...lay back and relax.....LOL

John & Ed,
Some of us have discussed re-calling the present Board but as they have not violated our Governing docs or state lea, that we know of, and lack of interest overall, we decided against it. Based on my appearances for jury duty it is my opinion that our local Judges are extremely liberal. It is also my opinion that they would look on any legal action brought against the Assn something like this:

Judge: "Why are you rich second homeowners taking my time with your trivia? Go back to the Bay area and leave me alone, I am busy prosecuting landlords that want their renters to pay their rent.

Unless you have a big "smoking gun" I think legal action may be like whistling into the wind, if you get my drift :-)

Paul T

KevinK7 (Florida)
Posts: 1,343

Posted:

What do your covenants and by laws say specifically?

PaulT6 (California)
Posts: 409

Posted:

Quote:

Posted By KevinK7 on 09/16/2012 2:59 PM
What do your covenants and by laws say specifically?

Kevin,

Not sure which particular subject you are referring to? My and other's concern is that the Board rejected my request to allow a vote or even a member survey on a $12 Million project.

Here is a link to our Governing Documents:

http://www.tahoedonner.com/wordpress/wp-content/uploads/2011/11/governingdocs.pdf

http://www.tahoedonner.com/wordpress/wp-content/uploads/2011/11/covenantsrules.pdf

Let me know here or via email [email protected]
if you would like more details.

Paul T

JayP3 (Florida)
Posts: 154

Posted:

EdG1,

You wrote: "These 'gestapo' tactics of the BOD are against the majority of the residents, and has put us in a 'scramble' to gain
financial control of our 567 unit development."

If this is true than you can Recall one or all of the Directors who support this and halt it immediately.

You can worry about the ammending process afterwards.

EdG1 (Florida)
Posts: 14

Posted:

To all respondents,....a sincere Thank You for each and every one of your responses ! For, this has truly become an "up-hill" battle ! After
trying to digest all of your data, I come up w/ a few 'basic' questions: 1) Do we solicit, by e-mail, or by a direct, door-to-door petition?
2) Dow we solicit to 'amend' the CCR's first, or do we solicit via, an, "anti-Capital Improvement" questionairre ? 3) Do we seek re-call, by petition,
of the entire BOD ? We've formed an ad-hoc Committee to approch this endeavor, and with each meeting we seem to be stepping on each other !
Lastly, how can we use the e-mail process to legitimately turn around a q'airre, or an amendment request ?
Thanks again to all !! This is one great web-site ! Ed.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Ed

Recall or replacing the BOD is a time consuming procedure and during that time, they keep going.

Ask youself if you have enough people against the project to get like thinkers elected to the BOD to stop/change the thinking? If the answer is no, then lay back and accept it.

If the answer is yes, then you have to buy time to get your people on the BOD. The way to buy time is to hire a lawyer and see if you can file some motion/suit that will stop the BOD from moving forward while it is hashed out in court.

See how serious the Ad-hoc people are when you ask them to kick in money to hire a lawyer. If you find they are not willing to put their money where their mouth is then back to an earlier suggestion. Lay back and accept it.

Hope this helps.

JayP3 (Florida)
Posts: 154

Posted:

Recall in Florida HOA is VERY easy if you know you have majority support. The only time required is to collect door to door 50% +1 (of the number of lots) VALID ballots. This time will vary depending on community size, resident status (full time vs. seasonal, etc.)

To recall a quorum or more of the BoD requires a replacement candidiate(s) be elected at the same time of removal(s).

After you gather sufficient VALID ballots the BoD has 5 business days to certify (verify ballot validity and number) or the recall is AUTOMATIC by law. This means thay cannot delay (or ignore) certification.

The ballots and instructions are found here: http://www.myfloridalicense.com/dbpr/lsc/LSCMHHOAprocedures.html

Ammending your CC&Rs will take MUCH more time because you have to organize and conduct a meeting.

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