Amendment vote question

Sorry if this is a bit wordy. I have an involved question, and I didn't know where else to turn for advise prior to paying a lawyer.

Our association is in the process of voting to eliminate short term rentals.

My contention is that this process has been done incorrectly, therefore everything done thus far, including the vote and the amendment is null and void. Below are some of the issues I have with the current (soon to be singed at the county office) bylaw.

1. The bylaws are clear that all meeting must be open. - The board was having secret meetings about this. Including up to the point of deciding the amendment, and to mail out the ballot.

1B. The bylaws are specific in stating, any meeting that discusses bylaw changes in any way, must be posted in the community for 2 weeks with this as an agenda item. This never happened.

1C. The date of the "secret meeting" to mail out the ballots was June 1. Some ballot dates were before June 1.

The reason I know this is because I am NOW the secretary and have access to these files.

2. The deciding ballot making the minimum for passage was not signed. It was a typed name as a claimed email. There was not accompanying email. All that was handed it was the ballot with the name typed on it. The board president said she was trying to contact this member for 2 months unsuccessfully. At the time of counting the member who secured and members whose name was on the ballot were each missing from the meeting.

3. In addition to number 2, I was able to contact the husband of the assumed owner and he was not open to altering the rental bylaws (he is an owner who rents).

4. Also to the above, their has since been an email to surface that the assumed owner asks if she needs to sign this, and the other members says you probably should - but that never happens.

5. Board coercion to try to force this through. I personally have been retaliated against because I voted NO. The board took 2 months to get financial documents to me that I needed for a potential buyer of my home. I lost the sale because no one wants to wait 2 months for a financial statement... I have the board member on a voice recording saying I need to get along with my neighbors, this is board retaliation... I should've signed the documents...

5B. A new home owner was lied to about the scope of the regulation. They thought it was about vacation properties, not that they could not rent their house on occasion. The then board treasurer stood with them while they signed it in the open...

My contention is this is an invalid bylaw. The other 4 members on the board are in favor of this amendment change so they are willing to look the other way to get what they want.

I will need to get a lawyer to fight this, but I am looking for opinions if this is something that I am correct in my thinking that this amendment is not valid. I need to spend my own money on this, and I am obviously biased. I am writing here looking for objective opinions.

Please advise.

All comments are welcomed.

Kindly

JamL:

I'm a Florida lawyer (Orlando area). Over the years I've litigated dozens of case involving questions of validity of HOA amendments.

First of all, if the HOA wants to ban short term rentals, amending a bylaw isn't going to cut it. They need to amend the covenants and restrictions. Bylaws control the operational procedures of the HOA. See Section 1.8 ("Bylaws") of Dunbar and Dudley's "The Law of Florida Homeowners Associations." Bylaws are not intended to restrict a homeowner's use of his property. That's what the covenants and RESTRICTIONS are for. That an HOA would try to indirectly amend the covenants and restrictions by amending the bylaws has been tried before (and failed). See the case of Westwood Community Two Association, Inc. v. Lewis, 687 So.2d 296 (Fla. 2d DCA 1997).

Second, chances are your covenants and restrictions detail a specific method by which they can be amended. Most I've seen require the execution (meaning notarized signatures) and recording of a single document making the amendment by the owners of a majority or super-majority (e.g. 2/3's) of the lots affected.

Third, there is a lot of case law in the State of Florida which implies a limitation on such amendments to the effect that amendments must be consistent with the "original scheme of development." See the case of Holiday Pines Property Owners Association, Inc. v. Wetherington, 596 So.2d 84, 87 (Fla. 4th DCA 1992). As for whether a particular amendment is consistent with the original scheme of development, each case is different. For example, if the developer sold units in part on the pitch that investors could buy units to use as short term rentals, then the HOA is going to have a hard time showing a short term rental ban is consistent with the ORIGINAL scheme of development. As an aside, a lot of HOA boards of directors think that an HOA is like a mini-municipality where a majority of owners should be able to shape or re-shape the community however they want. That is wrong thinking.

Fourth, there is a ton of case law in Florida favoring a property owners' free and unrestricted use of his own property. That means that any ambiguity in your governing documents will be construed in favor of allowing homeowners to use their properties as short term rentals if they want. Take a look at the case of Orlando Lake Forest Joint Venture v. Lake Forest Master Community, 105 So.3d 646, 648 (Fla. 5th DCA 2013).

Good luck to you.

Fred O'Neal

LarryB is right. I should have added that Fifth consideration. Florida law is consistent with Arizona in that there is an additional requirement that an amendment may not materially change the burdens on the existing community members unless they are apprised of that possibility by the original declaration. See the case of Flescher v. Oak Run Associates, Ltd., 111 So.3d 929 (Fla. 5th DCA 2013), citing Restatement (Third) of Property, Section 6.21 (2000).

I'm a lay-man. I'm a Nurse practitioner. Worked in surgery for 15 years... I don't understand a lot of "legal talk" What does it mean when you write: ...there is an additional requirement that an amendment may not materially change the burdens on the existing community members unless they are apprised of that possibility by the original declaration.

Should read:

The Court found that the original CC&R's had no provisions in them that would lead a reasonable person to believe that if he purchased a home that he would someday also be required to pay for a club membership. The Court found that the new requirement to pay for a club membership in addition to HOA assessments was a material burden for which there was no prior notice.

Florida does have similar laws. The new amendment is "Grandfathered in" to current owners so long as the home owner voted NO. If they voted YES then they consented to the new amendment. If they purchase the property after the ratification, they also consented...

My question however has to do with what my legal options are because the procedures required to alter the declaration, where the current no rental restriction is noted, was not followed. I feel this was passed in an illegal manner therefore this is not a valid amendment as voted on.

I was looking for any unbiased opinions if I have a valid legal claim before spending money on lawyers.

Melissa. I appreciate you comment and thoughts.

I agree 100% with you. Which is why I am opposed to it.

The problem where I live is there are a bunch old retired folk with a little too much money and time on their hands. They want to push this amendment through to make it their own private vacation community. For most here this is their second or third home... They feel they can do what they want and will harass the owners renters so long as they have this amendment to back up their position.

The only way I see fixing this problem is to challenge the amendment legally, however that will cost money.

They did not follow the outlined rules in how to alter the amendment, and in doing so I feel invalidates the amendment and would be illegal to sign into law.

I am looking for any unbiased opinions on my understanding if this is accurate.

Kindly

Shelia,

Contrary to what Melissa said about waiting for someone to challenge the amendment, according to this article from a law firm, FL Courts are ruling that there is a 5 year statute of limitations to challenge an amendment to the covenants.