Governing docs amended illegally

Started by KimberlyT4 • 28 replies • 526 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

KimberlyT4 (Florida)
Posts: 8

Posted:

Recently our board amended our Governing Docs. According to our old bylaws (prior to Feb.22, 2024. To amend documents, we must go thru same procedures as BOD elections. A meeting must be posted 14days in advance. Ballots may be in person, by proxy or absentee a ballot. An absentee ballot is a secret ballot and must be placed in a blank envelope then placed in a marked envelope. Our president and Vice president said our attorney told them it was ok to change their ballots if they weren't happy with their decision.
The actual ballots came in an envelope to homeowners with 1 envelope addressed to our attorney. We were instructed to mail to her or fax to her or drop off at the managers office. Our president made daily robocalls, posts on the Facebook and twice in our newsletters, instructing residents what to do and that they could change their ballot. Then they sent a committee out to collect ballots and several residents said they were told how to fill it out. Being seniors, they said they felt intimidated a d afraid of retribution
My question is 1. How do we get the amendments revoked? 2. Is there a way to make our attorney revoke them or should I complain to a legal board? Does this make the 2 board members eligible to be recalled?

TimB4 (Tennessee)
Posts: 21,061

Posted:

Kimberly,

You are asking a lot of legal questions that are best answered by an attorney.
Probably one versed in contract or corporate law.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By KimberlyT4 on 03/09/2024 2:55 AM
... snip ...
My question is 1. How do we get the amendments revoked? 2. Is there a way to make our attorney revoke them or should I complain to a legal board? Does this make the 2 board members eligible to be recalled?

Florida does have some procedures available for resolving disputes that don't go to the extent of filing a lawsuit. They're usually quicker and cheaper, but the available options may depend on whether you live in an HOA or a condo.

My (non-lawyer) opinion is that the amendments probably don't need to be "revoked" because they were never valid to start with (due to flawed voting procedures). Board members serve at the pleasure of the membership and may be removed for any reason or no reason at all. There are proper procedures for that, which you need to follow to the letter - any mistakes or shortcuts will invalidate that effort as well.

If you and a group of neighbors are working with an attorney on this, a simple cease-and-desist may be enough to stop the board from following the the invalid amendments, although if they've been recorded some other steps will be needed. If you're not, find a knowledgeable attorney and follow their advice. As "messes" go, this one isn't too bad yet and hopefully can be resolved without too much drama.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KimberlyT4 on 03/09/2024 2:55 AM
Recently our board amended our Governing Docs. According to our old bylaws (prior to Feb.22, 2024. To amend documents, we must go thru same procedures as BOD elections. A meeting must be posted 14days in advance. Ballots may be in person, by proxy or absentee a ballot. An absentee ballot is a secret ballot and must be placed in a blank envelope then placed in a marked envelope. Our president and Vice president said our attorney told them it was ok to change their ballots if they weren't happy with their decision.
The actual ballots came in an envelope to homeowners with 1 envelope addressed to our attorney. We were instructed to mail to her or fax to her or drop off at the managers office. Our president made daily robocalls, posts on the Facebook and twice in our newsletters, instructing residents what to do and that they could change their ballot. Then they sent a committee out to collect ballots and several residents said they were told how to fill it out. Being seniors, they said they felt intimidated a d afraid of retribution
My question is 1. How do we get the amendments revoked? 2. Is there a way to make our attorney revoke them or should I complain to a legal board? Does this make the 2 board members eligible to be recalled?

It seems like a major conflict of interest to have your ballots sent to the board's attorney! Usually when ballots are turned in, they are irrevocable. Usually, board members can be recalled at any time by following the procedures in your governing documents or state law.

ElleN (Idaho)
Posts: 4,420

Posted:

This continues a discussion started at https://www.hoatalk.com/Search/ForumSearch/tabid/87/forumid/1/postid/363483/view/topic/Default.aspx

KimberlyT4, so far I am not convinced that you could prove that anything illegal was done here. But if you want to try to get an authority to adjudicate this, then one option is to file for arbitration with the state Department of Business and Professional Regulation (specifically a certain Division of the latter). KimberlyT4, if you want details of how to do this, then please indicate whether this is a condominium subject to FS 718, or a homeowners' association subject to FS 720.

Florida does not require an elections inspector. The HOA/COA attorney might be the HOA/COA's registered agent. It's not illegal to have the ballots sent to the attorney.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

There is a difference between Bylaws and CC&R's. Bylaws typically do not need to be filed. They are also internal HOA documents and NOT public. The CC&R's and Articles of Incorporation are PUBLIC and required to be filed. Bylaws can be modified by simplier terms. I had a lawyer tell us simply putting a change in our meeting notes could count as a change to the by-laws. This is something should consult a lawyer about. Plus it is NOT a one person job. This is not necessarily a board only job. It is ALL members job.

Former HOA President

LoriM15 (Florida)
Posts: 1,009

Posted:

In Florida, COA procedures are as the poster describes. You have a ballot, place it in a ballot envelope, and then place that sealed envelope in another envelope that is handed in person or mailed. Ours generally goes to the management company, but having that go to an attorney is not illegal.

There is also a proxy that is signed. The proxy is what establishes the quorum for the meeting and they get counted along with anyone attending the meeting in person.

I'm not sure what the issue is about telling people they can change the ballot. It may be that they were told they can change the proxy, which they have a right to do. They can change the proxy from the person listed on it (usually the board secretary) to anyone they want to designate.

Reading the original post, I'm not sure why the poster thinks the amendment was illegal. If they got enough proxies and attendees to hold a valid meeting, then they were able to conduct business. If they had enough votes to vote for the amendments, then the amendments pass. Other than the owners who felt intimidated (and that can be a real problem), I'm not seeing what the issue is. Maybe I read it wrong.

By the way, lowering the number for a quorum is almost always a GREAT thing for a community, since there is so much apathy and you can't conduct business without a quorum. Maybe there was something else in the amendment that was more controversial.

KerryL1 (California)
Posts: 14,550

Posted:

I don't know FL statutes. Does 718 or 720 state that ballots are irrevocable? (as in some other states) If so, then yes, that's a big problem.

Voting instructions said, "We were instructed to mail to her or fax to her or drop off at the managers office." So "the committee" did not proceed as required by the instructions. Do 718 or 720 say that voters must turn in or send ballots to the designated person, who'd named in the voting instructions the accompanied the ballots?

Was this "committee" formed and approved by the Board at an open meeting as required, I'm pretty sure, by FL statutes?

KimberlyT4 (Florida)
Posts: 8

Posted:

This is an HOA. I am going to what our bylaws state. This committee had a list of names of homeowners that did not turn in a ballot and those that opposed. They went door to door.
Ballots were opened as they came in. Our president said he was doing what the attorney told him.
Many residents opposed the amendments because they did not understand the changes. Either very old or no speak english. We have a very diversified community with over 10 languages. So according to 720 a committee was to be formed to investigate what residents would like changed. Also, If too many strikethroughs, then documents are to be in a simple language.
According to our bylaws, the amendments were to be treated like an election.
And I believe they are irrevocable according to bylaws and FL statutes.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I'd like to see citations that make these things irrevocable. I have never, not once, heard of such a thing. There may be a high barrier to overcome, such as requiring unanimous approval, but that doesn't mean it can't happen.

State and federal laws change, societies change, people's needs change. If a community's CC&Rs or bylaws don't keep pace with the changes, the board will be operating illegally at some point. It would be crazy to tie people's hands this way.

LoriM15 (Florida)
Posts: 1,009

Posted:

Here's the statute from FS 720.306(8)b

If the governing documents permit voting by secret ballot by members who are not in attendance at a meeting of the members for the election of directors, such ballots must be placed in an inner envelope with no identifying markings and mailed or delivered to the association in an outer envelope bearing identifying information reflecting the name of the member, the lot or parcel for which the vote is being cast, and the signature of the lot or parcel owner casting that ballot. If the eligibility of the member to vote is confirmed and no other ballot has been submitted for that lot or parcel, the inner envelope shall be removed from the outer envelope bearing the identification information, placed with the ballots which were personally cast, and opened when the ballots are counted. If more than one ballot is submitted for a lot or parcel, the ballots for that lot or parcel shall be disqualified. Any vote by ballot received after the closing of the balloting may not be considered.

We don't know what the bylaws for the association say. It would be nice if the OP would post them.

I read it to say that if a ballot has already been received for a parcel and a second one comes in, then all ballots for that parcel are disqualified.

However, I do know that you can submit a proxy and then revoke it before the meeting and that might be what they were doing. They should not have been opening the ballot envelopes before the actual vote-counting at the meeting.

There are two separate issues here. Board members are elected via ballot. Document amendments are usually on the proxy, where you vote directly on the question or designate someone to vote for you on that question.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By CathyA3 on 03/09/2024 10:55 AM
I'd like to see citations that make these things irrevocable. I have never, not once, heard of such a thing. There may be a high barrier to overcome, such as requiring unanimous approval, but that doesn't mean it can't happen.

State and federal laws change, societies change, people's needs change. If a community's CC&Rs or bylaws don't keep pace with the changes, the board will be operating illegally at some point. It would be crazy to tie people's hands this way.

Ah. If you mean the vote was irrevocable, I think that's the wrong word. If it complied with all legal requirements, then it stands. If it did not, then the vote was not valid and simply needs to be declared invalid (and the amendments are not in effect).

I think what you're asking is if you can have a do-over in the case where the vote complied with legal requirements but owners did not fully understand what they were voting for - or something of that nature. You probably need a legal opinion for that. I'm pretty sure the board could draft new amendments to replace the questionable items and hold another vote. But forcing the board to do this? That will probably depend on whether your bylaws allow homeowners to call a special meeting for such a purpose (and you'd need to have a lawyer draft the necessary amendments). It may be easier to oust a reluctant board either through the annual election or through a special remove-and-replace meeting, and elect new board members who are willing to undo what was done.

Let's hope they did actually make a mistake with the vote procedures and the vote was invalid. In which case a do-over is not only allowed, it *should* be done if those amendments were such a mess.

KerryL1 (California)
Posts: 14,550

Posted:

The possible issue is: Are returned ballots irrevocable. I don't see that topic within Lori's citation. But, clearly, if the second envelope was open before the ballot-count meeting, that's very wrong!

But what if Kimberly does mean proxies are opened (if that's the right word.)

KerryL1 (California)
Posts: 14,550

Posted:

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KimberlyT4 on 03/09/2024 10:31 AM
This is an HOA. I am going to what our bylaws state. This committee had a list of names of homeowners that did not turn in a ballot and those that opposed. They went door to door.

The committee members broke no law IMO. It is a time-honored tradition for any HOA owner to go door-to-door and lobby for votes or even signed proxies for issue xyz or board candidate abc.

Quote:

Posted By KimberlyT4 on 03/09/2024 10:31 AM

Many residents opposed the amendments because they did not understand the changes. Either very old or no speak english. We have a very diversified community with over 10 languages.

I think it is on you and others, who want votes for or against xyz, to figure out how to communicate with anyone who might struggle with understanding the proposed changes.

div class="NTForums_Quote">Posted By KimberlyT4 on 03/09/2024 10:31 AM
So according to 720 a committee was to be formed to investigate what residents would like changed.

I think you are referring to the "organizing committee" that FS 720 requires when a revival of the Declaration and HOA is sought. Is a revival being sought?

"Revival" here has an exact legal meaning. If you do not understand what a "revival" is, please say so.

I checked FS 720. Unless the bylaws say otherwise, so far I see nothing that prohibits an owner from withdrawing a ballot and then submitting a new ballot.

KimberlyT4 (Florida)
Posts: 8

Posted:

I have attached our bylaws for you to view. Forget the proxy because we were told they weren't allowed. Look at 3.10 and 3.11. As stated, an absentee ballot is a secret ballot. Therefore irrevocable. I can not have a change of heart, run up to the office, and submit a new ballot just because I had lunch with the president's wife. He started his campaign by telling residents that there is a new FL law that makes campaigning a misdemeanor. And now to amend Docs with over half of the homeowners disagreeing on the total package. We have a running list of Ooopsies. If we allow this passing of the docs, will the same thing happen with BOD elections? Back in Nov. when he was campaigning for a 2nd term, a letter went out to residents warning us about him. There was nothing derogatory in this letter, it just made several points to consider before checking his name on the ballot. He immediately got on the HOA FB page and a robocall telling people to ignore it and then made his pitch as to why he wanted us to turn them in. Anyone else posts anything more than a Happy Birthday gets deleted. Mid-January he made a robocall yelling at residents to sign them that he was so disappointed in them and they had a duty to send them in. He had been keeping a tally of what items were not voted on from the beginning. That's when his committee went with a list of names to tell residents how to fill out the ballots. They collected most but they were not placed in envelopes. Homeowners did not want others to see how they voted simply because of the retribution they would face. Many are receiving letters about items on their property that need to be repaired, painted or replaced. Some got one saying they need a new mailbox or post. They had replaced these last year and now have to figure out what is wrong with the new item. All were repaired according to our architectural rules. Am I in the wrong for wanting a recall? I don't think so. If we are expected to follow our rules, He should too. when he was told that it was against our bylaws, he said our attorney said it was ok.

I apologize for taking so long to answer but I am not sure what file type this forum wants for an attachement. its smaller that 1500kb

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KimberlyT4 on 03/09/2024 4:38 PM
As stated, an absentee ballot is a secret ballot. Therefore irrevocable.

I do not understand. Why is a secret ballot not revocable? The outer envelope of which LoriM15 spoke (quoting FS 720?) has the member's name on it. Why can't a member have lunch with the president's wife and then go to whoever is holding the ballots?

I know you said the envelopes were opened as they arrived. But this still does not prove that whoever is holding these materials could not keep the outer envelopes attached to the ballot.

I think your argument on this point is not solid enough.

Attachments must be under 200 kilobytes in size each. Break up your pdf file, or reduce its size, using free online tools.

ElleN (Idaho)
Posts: 4,420

Posted:

KimberlyT4, if you are serious about disputing these alleged election deficiencies, and as cheaply as possible, then download and complete this form, and submit it per the directions on the form:

http://www.myfloridalicense.com/dbpr/lsc/documents/Petition-ElectionDispute.pdf

This will result in an arbitrator being assigned to your dispute. The cost is $200.

Though if I were you, I would hire an attorney to complete the form.

KerryL1 (California)
Posts: 14,550

Posted:

Secret ballots in HOAs in CA are irrevocable. Wouldn't be surprised if in other states too, including Florida. I assume the 3.10 & 3.11 to which Kimberly refers are Bylaws. Can you just cite them Kimberly?

As explained to Elle at least one other time: In CA, secret ballots are by statute and most likely Bylaws kept locked in a safe place. ONLY the personal authorized by the Board to receive them has access. That person records the name & HOA address of each voter who submits a ballot. IF SIMILAR in FL, the ballots remain securely locked with NEITHER envelope opened until the ballot-counting meeting.

Imagine in an HOA of even just 200+ like mine, where 70% turnout for elections is typical, a few dozen words coming to our authorized person, perhaps even more than once and saying they want to change their vote. Are they given a new envelope? Is this recorded by the auth. person, so no one thinks the ballots have been tampered with? Does that person send the voter outside so that the ballot remains secret.

So, Kimberly's (Board or) Board prez opened the outside envelope before it's permitted by statute. Since he knew how various owners voted, he clearly and illegally open the inside envelope too. He violated secret ballot statute. If Kimberly can PROVE these violations of statutes and probably their Bylaws occurred, I feel she has a very strong case.

Elle, do consider the word "secret." I can't believe Idaho is different, but elections for all levels of governance, etc., in my state are by secret irrevocable ballots. I'm puzzled why you question a perfectly logical law in another state as if it's silly. My sense is that you've had no experience with HOA secret ballots.

KimberlyT4 (Florida)
Posts: 8

Posted:

I do know what revival is. I attended one a few years back in a big tent! I didn't come posting a question just to be ridiculed. I like others whether volunteers BOD members or homeowners on this forum have come seeking information to assist us.
We revived our docs about 8yrs ago. This board or president wanted to amend them to add in items such as staggered terms and capitol contributions. I think I have my answer.
thank you for any and all help.
by the way, I never could find information on what file type to use to attach my bylaws for your reading enjoyment.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KimberlyT4 on 03/09/2024 8:32 PM
We revived our docs about 8yrs ago.

Then what happened in the last several months was not a revival, and the committee of which you speak here:

Quote:

Posted By KimberlyT4

So according to 720 a committee was to be formed to investigate what residents would like changed.

is in fact not required by FS 720.

I know both pdf files and MS Word files can be attached, as long as each file is less than 200 kilobytes.

KimberlyT4 (Florida)
Posts: 8

Posted:

I have tried every possible way to reduce the file but the way they are put online for us is antiquated. I agree they need to be updated or actually have someone retype them.
3.4 states the time period for notification for meeting for voting of directors, budget meeting or any meeting to amend the documents
3.5 states how many votes are needed to pass the amendments

3.10 Votes for directors shall be in person or absentee ballot. votes on all other matters may be cast in person or by proxy or absentee ballot. Proxy is defined to mean a signed, written instrument containing the appointment of another person who is substituted in the place and stead of a member or authorized representative of an entity entitled to vote. To be valid a proxy must be dated state date time and place of meeting fro which it was given. Absentee ballots shall be secret ballots and shall be enclosed in a blank envelope. The blank envelope shall be enclosed in a second envelope which envelope shall be signed by the person or authorized representative of a entity giving the same and shall be valid only for the particular meeting designated therein. Any proxy or absentee ballot may be revoked prior to the start of the meeting at which such a vote is to be cast according to such proxy or absentee ballot.

Please let me know if I am reading this correctly. I could be wrong. I do apologize

LoriM15 (Florida)
Posts: 1,009

Posted:

I don't think anyone here is trying to ridicule you. I think we are all trying to understand what the issue is and then advise what we think you can do about it.

After reading from your bylaws and then re-reading your original post, I'm not quite sure what your board did wrong procedurally. Your bylaws say that any proxy or ballot can be revoked before voting, so there was nothing wrong technically with board members soliciting votes and advising people that they could change their votes or their proxy. It is very common to go out and try to get enough proxies to make the quorum for the meeting and to make changes to the amendments.

The part where they MAY have gone wrong is if they opened the BALLOTS before the meeting (not the proxies) so they knew the vote count before the meeting. Also if they put pressure on elderly or non-English speakers to get their votes.

I think it would be helpful to find out what was in these amendment changes that are a problem for you. Did the board make some changes to the documents that are unreasonable?

It would also be helpful if you read the parts about elections from FS 720. Also, there is a lot of material online about following FS 720 and the rules. One law firm, Becker, has a lot of blogs and Q&As you might find helpful.

KimberlyT4 (Florida)
Posts: 8

Posted:

Update after CCR amendmending.
The president, vp and treasurer got their re-election and have now overspent so much on things we could not afford that our dues are above $500 permonth and the new board took a vote for a $4500 special assessment to use how they please. One of the directors wives said it is in our by-laws now that they can. Pres has fired 2 management companies and has decided to self manage himself.

Dues do not get paid to the bank like we used to in 2024, instead they go to the office. $75000 was spent on trimming trees , roughly 2 branches per tree and is what his friend, a so called arborist called a hurricane cut. yet all the trees behind my home and 10 others are still over 45feet tall and 25 feet from my roof. spent $12000 on a new property survey because he wanted to prove that the land owner behind us actually was on our property. (He owned his property 20years before we were ever developed and had surveys showing it was his.) Then Mr Prez spent another 10K to powerwash the sidewalks and another 12K to have our drains cleaned. The company said it is a Florida requirement to have them cleaned every 5years in an HOA. I can find nothing to concur.
This and much more was spent with a nearly $0 bank account depleting CD's that we have kept since the very early days. Our entry gate got hit before Christmas and the pres has decided to not repair it but use some of the assessment to get a whole new gate.
So after spending so much time and effort into trying to do a recall, as it now takes 75% of 221 homes to get it done, and many Residents said they did not want to be a part of it for fear of backlash. And they are so correct as I keep hearing what type of letters they get, we have decided to sell and let em have it. My forever home is definitely not here and never again in an HOA. I have learned a lot in 17years with the last 4 being a nightmare. There are 17 homes for sale in here with 5 more coming.
Thank you for helping so many HOA members out. Keep up the good work as there are so many that have gone bad. it is amazing what a little power kick does to their brains. God bless you guys for your efforts and god help these HOA's.

DeanJ
Posts: 1,786

Posted:

It really doesn’t matter if the fee increase was $5 a month or $5000. If you are unhappy, you made a prudent decision to go.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Power isn't bad by itself. It causes trouble is when it goes to people's heads and/or when it's accompanied by poor decision making. These two things tend to go hand in hand, which appears to be what's happening in this case.

LoriM15 (Florida)
Posts: 1,009

Posted:

I understand that your HOA is being run poorly. However, having been on the board of an HOA in Florida, I can tell you that it IS important to get those storm drains cleaned out or you will have flooding during the next big storm. And the trees really do need to be trimmed and depending on the number of trees, that's not an unreasonable cost. We spend a fortune each year cutting coconuts off the trees before hurricane season. In our community, we have people complain that large trees are too close to their homes. But if the tree is in our preserve area, we CAN'T cut it down because we are prohibited by state and federal regulations. So I get that your board is probably not communicating well and making some stupid decisions, but not all the things they are doing are unreasonable. And it may be that your association was neglected for a long time and they are playing catch up. But anyone who is that unhappy with the way things are run is making a good decision on just getting out.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Kimberly,

You probably made the right decision.

I know it's not a favorite option (just as going to court is not a favorite option) but, sometimes, it can be the best option.

RobertC43 (Florida)
Posts: 13

Posted:

The questions is, were the amendments actually recorded at the Clerks office. (you can check online because the actual documents and amendments can be downloaded by anyone) If they weren't, then they aren't valid.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here