In FL, Can manager/officer VETO amendment by refusing to record

As the law in Florida requires governing documents to be recorded with the county for them to be effective, is it possible for an officer of the association or the manager to veto a duly passed amendment by refusing to actually record the amendment?

I have an interesting predicament. Late into a board term, amendments to the bylaws were adopted. All required notices, quorum, minutes, etc have been met. The documents were signed and executed by the directors and copies were sent to all homeowners with the annual meeting packet. The manager was requested to submit the amendments to be filed as it has in the past. The annual meeting was conducted in accordance with the bylaws as amended. However, this was a culmination of a 16-month review of all the governing documents to clean up obsolete language and bring the association in compliance with the law (you'd be surprised what the prior board got away with), the association participated in the draft reviews. Unfortunately due to illness the manager who supported the board efforts left, and turnover issues with the firm had us see 3 cams in the last 8 months, the last of which held a 180 degree opposite view of the first manager of the board's efforts. The end of the term and vacations were approaching and no more meetings were scheduled for the current board, with two directors not seeking re-election (myself included). It was at this point, despite having two months too review drafts before the final passage, the manager raised an objection to some language in the bylaws. A line unmodified by the amendment and still identical to the original developer version. Because of this, the manager was not going to help file the amendment and I reached out to the association attorney to help. Unfortunately, the help came too late and a new board was seated. At the first meeting of the new board, the manager advised the newly seated board to assume the prior bylaws amendment (the ones they were elected under) are null-and-void as if they never happened. And they should repeal everything the prior board did. Now I don't object to board review. They have every right as any board to amend documents and policies as long as they vote and do so in properly held meetings. We have nothing to hide. However, one of our rogue directors returned to service, got elected, and convinced the new board to make them president. So the new president and manager are refusing to allow the association to record its duly passed governing documents. Ugg.

Questions:

1. Is there any recourse to this? other than to wait a year and try to vote the rogue directors out?
2. Is there a duty by the association officers to record amendments to the governing documents within a deadline?
3. Could the prior board president or secretary simply record the governing document themselves bypassing the manager?
4. What if we are talking about a Declaration amendment passed by a super majority of the owners.... Can the board president, secretary, simply refuse to sign the document vetoing the community. (of course, they can be voted out/or recalled )

If your board is authorized by your Bylaws, to amend your Bylaws, and if your Board voted, per your Bylaws, to amend the Bylaws, then the amended Bylaws are in effect from that time of that vote.

Florida does not require recording of Bylaws.

FS 720.306(1)(e) says ... "An amendment to a governing document is effective when recorded in the public records of the county in which the community is located."

The governing documents are defined in FS 720.301(8)(e) [a through c] as the recorded declaration of covenants (and duly adopted amendments), the articles of incorporation and the bylaws (and duly adopted amendments) and the rules and regulations adopted (and amended) in accordance with the declaration, the bylaws, the articles of incorporation.

It's a gray area whether or not the original bylaws and rules have to be recorded. Our Declaration says they do, but that's not in the statute. The statute says only AMENDMENTS have to be recorded.

I'd propose that the manager's interpretation of whether or not an amendment adopted by the board of directors and approved by the homeowners needs to be recorded, and offering an opinion on that, constitutes the unlicensed practice of law in the state of Florida. You'd probably need an attorney to opine on that, although any homeowner can lodge a complaint against the CAM or the Management Company.

What about this from FS 720.303 (1):

"After October 1, 1995, the association must be incorporated and the initial governing documents must be recorded in the official records of the county in which the community is located."

Yes, 2018, but I think what you may be referring to is, as of July 1, 2018 Rules and Regs count as a "governing document." And the legislature burdened you good Floridians with having to record Rules and Regs and every change to same.

I see chatter about the Bylaws not having to be recorded in Florida, so I am not certain about the original Bylaws, despite what I quoted above.

Regardless it appears to me that FS 720 requires the amendments to the Bylaws do have to be recorded to be effective.

I am not happy to so far be under the impression that yes, a rogue-ish board seems (to me) to have a kind of veto power over duly passed amendments, by simply refusing to send an agent to record them.

Maybe the OP ought to trot down to the County Clerk and just ask them, straight up, whether he can lawfully record the Bylaw amendments?

Sure thing.

1. During my tenure, we amended the bylaws twice following the same procedure. We actually restated them in 2018 (with the co-operation of management) and then amended in 2019 (to improve our annual meeting participation). The 2018 amendment was submitted for recording by management in days with zero issues. We followed the exact same procedure in 2019.

2. Our bylaws and AOI can be amended by a simple board majority with quorum present. The Declaration requires 2/3rd vote of all voting interests.

3. Yes, the Declaration, Articles of Incorporation, and Bylaws all have a similar clause. Specific to our bylaws: "These By-Laws may be amended only by the affirmative vote of a majority of the Board at a regular or special meeting of the Board called for that purpose; provided however, that these By-Laws may not be so amended by the Board in any manner which would be inconsistent with the Declaration or the Articles. Amendments to these By-Laws shall become effective upon the recordation of an amendatory instrument executed by the President and Secretary of the Association and recorded in the Public Records of Brevard County, Florida.


Sorry, I was unclear in my question. Better asked: Did we make a mistake by trusting management to record the documents and instead should the Association Secretary (while still the officer) had filed the amendments on the association behalf the moment we discovered the manager won't? We actually turned to the association attorney for help, but there was little time left in the term.


GenoS, Thank you... Actually, this was one of my thoughts that I really should address the new managers' actions here and formally complain. My jaw hit the floor when I attended the first board meeting and heard the manager as a matter of fact stated the amendments were effectively null and void and the new board can simply ignore all amendments and resolutions we previously adopted without new votes. I did send a letter to the management company detailing the manager's behavior and detailing several of the false statements she was making to the board regarding the votes the prior board took. Though from the response I got, they are not interested in the matter and think this is nothing more than an owner/board dispute.

If I choose to go down this route, any pointers to where complaints against CAMs Management companies are best directed? This is a road I've never been down.


GenoS. Agree, this was the case I made to the board. The manager told the board they need to revote on the amendments effectively trying to argue the prior vote never happened. It did, happen and the HOA simply hasn't completed the administrative chore. Indeed I found that same article you mentioned and sent it to the board so they understand there is no deadline here any future officer/agent can simply go record the document as should have been done from day 1.

The mess is the limbo in the meantime. We mailed the signed amendment to the association with our 2019 annual meeting notice and proxy. The annual meeting was held in accordance with the bylaw amendment. If indeed this amendment was not effective, is it possible that the annual meeting/director election was improper and also void? I have no desire to open that can of worms though.

Oh well, we shall see how it plays out. Obviously, I'm an amateur volunteer. So are the new board members. Human nature defaults to trusting authority thus it's been a difficult road helping the new board members to understand where they are being misled.

To challenge a Florida non condominium HOA election, this petition form has to be used:
http://www.myfloridalicense.com/dbpr/lsc/ARB/Petition-ElectionDispute.pdf. Note that the very first step has the petitioner attaching the current bylaws to the petition. The steps for filing this form are quite short. The cost to file this complaint appears to be $200.

On the other hand (for me), since a board at your HOA can just turn around and amend the Bylaws (following proper procedures) yet again on its own, maybe the battle is not worth it.

This part of the ->DBPR Website<- can be used to file complaints with the DBPR. You might want to register for it since I imagine complaints with names attached receive more attention than anonymous ones. Use the "Community Association Managers" choice in the "Board" dropdown selection.

I do agree with AugustinD to a point that filing a complaint might not have any effect at all. But you don't know unless you try.