Drafting Condominium Documents

Started by AliceB3 • 14 replies • 1724 views

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AliceB3 (Florida)
Posts: 8

Posted:

Hello. I just found this board and love it. I live in a condo in Florida and our Board has taken it upon themselves to amend the bylaws and declaration in a BIG way. So this is my first question and I have done tons of research trying to find the answer. Who is responsible for drafting these amendments or should I say proposed amendments? Does it need to be an attorney? There is very little information out there about this and I haven't been able to find anything in the Florida Statutes. I was able to find an Advisory Opinion issued by the Supreme Court of Florida stating exactly what CAM's can and cannot do but not condo boards. CAM's can not be involved in any drafting at all. I really would appreciate some guidance on this issue.

Thank you.

Alice

KirkW1 (Texas)
Posts: 1,665

Posted:

I think you will find that most associations draft their own documents and then send them to the attorney for review. Paying the attorney to actually write the documents can be cost prohibitive.

JeanneK3 (Maryland)
Posts: 562

Posted:

Also, the drafted documents must be approved by a certain percentage of the homeowners. Your documents will tell you what that percentage is, but many times it is 66 2/3 %. Any board that wants amendments passed should be working with the homeowners from the beginning.

AnnaD2 (Florida)
Posts: 960

Posted:

Hi Alice, and WELCOME!! You'll find the most HELPFUL people in the world on this site as far as getting great opinions, advise and CORRECT ways of doing things.

You're from Florida, as am I. The most helpful person on this site concerning Florida issues. is DONNA. She's done exactly what you're trying to do now. Please wait for her to give you the BEST advise around!!!! Yet never disregard the opinions of EVERYONE who posts replies to your questions.

I may have missed it but are you a condo (statues 718) or homeowners (statues 720) association?

We ALL look forward to working with you and please check back often for assistance!

As for now----I'm getting ready for Fay....that awful woman threatening the Florida penninsula.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alice,

You say that the Board wants to amend the Bylaws and declaration in a big way? Do they feel that the documents are not working or do they just want to clean and clarify them? There is a big difference in the procedures and work involved if you want to redo or just rework them.

There is no particular person or persons responsible for drafting them and it will be a whole lot less expensive to have a good committee start working on them. After you have them saying what you want them to say, then very good advice is to have an association attorney review them and to put them into legal language. By having them ready, it will save alot of money to do the preliminary work yourselves.

You will want to print a copy of Statutes 718 which are the Condo Statutes and have that copy at the documents committees meetings at all times. This committee has NO vote power and works solely for the Board. This is a perfect opportunity for the members to get involved and have some input.

BUT!! you already have CC&Rs and Bylaws to follow. Use them first to add or delete items that need fixing or fine tuning. Yes you can add items under both the covenants and bylaws but IF you add any item into the covenants, make sure that the Bylaws also cover that item. That's why you need a professional to check them over before they go to a vote of the membership.

And finally, don't forget, any and all of any changes must be presented to the general membership for a vote to pass or deny it's acceptance. Make sure that all of the Statutes are followed as for amendment changes. And lastly, if any of it passes, make SURE THAT IT GETS FILED IN THE COURT HOUSE OR IT IS NOT VALID

SusanW1 (Michigan)
Posts: 5,202

Posted:

Alice - every 3 to 5 years the Bylaws need to be looked at - preferably by a Standing Bylaw Committee who has been tracking issues and meeting regularily in order to make recommendations to whomever takes it to the next step.

Who drafts the actual words? Maybe this committee, maybe the board.

Tweaks are always accepted before it goes to an announcement of an intended vote. WE held hearings for our members to go over them, then wrote revisions, presented them to the board for their "blessing" and then went in front of the members for a final vote.

Any amendment can be voted down, if it isn't right.

AliceB3 (Florida)
Posts: 8

Posted:

Thanks everyone so much for your input. This scenario is very strange or at least I think it is. As Kirk said, most associations draft their own documents and send them to the attorney for review. That is exactly what happened, but there is a big problem. The advice that the attorney gave was ignored and the Board President just went ahead with what he wrote. We voted by limited proxy and he altered the format and I am certain that it does not conform to Florida Statutes. He has an amendment that is called "WORDING CLEANUP." That entails the amending of 23 different bylaws and the text of the "WORDING CLEANUP" is on another page and in another document and almost impossible to find or understand. This is a 55 and older community and I don't believe that most of the people read the proposed amendments and if they did they did not understand them. As is typical in most condos (I fall under 718) the people that live here are not really concerned about this or they just do not understand it. So yes, some of the amendments did pass and they are recorded. I know that there are conflicting amendments and that the whole thing is just one big mess. The limited proxy that was given to the unit owners is like nothing I have ever seen before. You almost have to be an attorney to fully understand it. I hired an attorney that specialized in this type of law to go over the limited proxy and she said that it was absolutely not done correctly. Then, to make matters worse, the Board President changed attorneys. My attorney called him and he said he may or may not record the amendments and would give no definitive answer. So I just checked public records until I found that they were filed and they were the proposed amendments our President wrote. I don't know what to do about all this except file a complaint with the State and I truly do not want to go there. But now we have documents with conflicting wording and the whole darn thing is a mess. Our Board President is a pompous, self-serving person who has no regard for anyone but himself but he does have these followers. I am considered a trouble maker so I can barely even speak at a board meeting. This whole thing is just making me sick.

Thanks again everyone for your input.

Alice

AliceB3 (Florida)
Posts: 8

Posted:

DonnaS,

Thank you for posting. They are amending these documents under the auspices of giving the unit owners more power and the board less. The exact opposite is happening. It really is an effort to clean and clarify them to the Board's liking.

I have Chapter 718 and found many violations by the Board. It is unfortunately after the fact to have a committee - the damage is already done. But it is a great idea for the future because I am of the opinion that the documents are going to need a major overhaul. This Board President was never voted in and never passed around an information sheet so I know nothing of his background. Actually, he breaks the rules himself. There is a rule that there is no outdoor cooking and he went out and bought 2 grills and they are now located just outside his door and he has been cooking up a storm.

Thanks,
Alice

DonnaS (Tennessee)
Posts: 5,671

Posted:

Alice,

It sounds like you already know the problems with what was done and have sought out legal counsul. Therefore, we really should not get involved in what you are paying someone to do. This happens often when the membership does not really pay attention to what is going on. If the membership had read what they were signing on the proxies, you would hope that enough of them would have paid attention and put a stop to this. It is now for the lawyers to figure out. Sorry

AliceB3 (Florida)
Posts: 8

Posted:

Hi Donna,

Thank you for the post.

I had legal counsel for one thing only and that was to determine if the proxy was valid. She is not working with me now - I wish I could afford an attorney. I do know a lot about Chapter 718 but I am also aware that the state is swamped with complaints and the DBPR does little or nothing to the wrongdower. This issue is affecting me badly and you are right. The membership should have read what they were signing and now let them live with the consequences. The main problem with that is that it was written in such a way that you could not understand it unless you had some legal or business background. The only thing is I have to live with them too. I have lived at this condo for 20 years and I would have to be dead to ignore these issues. Over my dead body is this Board President going to get away with all this. He totally disrespects all of our documents and their are other things that are coming that I have not even mentioned that he is going to have to answer to the DBPR for. So, with your wake-up call (which is exactly what I needed) I believe the solution for right now is to start the complaint process so that the Board President can get his hand slapped. What is your opinion about that?

Do you want to hear something absolutely bizarre? Yesterday I went to the office of our Management Company for some copies of records and I got into a conversation with one of the employees. I was looking at a copy of my limited proxy and I said to her that there was no way an attorney wrote this. She got really defensive and said ok, she was going to show me one did. She dropped right in front of my face a letter from our then attorney which confirms most of what I say and advises a rewrite, which was never done. Right in the upper middle of the letter, in bold letters, underlined, the letter says CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGED INFORMATION. So now here I am with this letter confirming what I am thinking and she made a copy of it for me.
I wonder how long she is going to have her job if the owner finds out about that.

Donna I don't know if you know how it feels to be treated disrespectfully by the Board President in Board Meetings and then basically given no time to even talk. The President knew that I knew his proxy was not in conformance with Florida Statutes yet he went ahead and filed it anyway. He spends the Association's money like it is water (that will be addressed at a later date) and my biggest fear is he will take it to the point where I will no longer have the funds to live here. His power has to be taken away or, at the very least, he needs to know that everyone in this condominium just gives him carte blanche to do what he wants. As it stands there is no accountability and I cannot live like that.

I really appreciate your input. You tell it like it is and I like that. Thanks for letting me rant.

Alice

KirkW1 (Texas)
Posts: 1,665

Posted:

Alice,

The manager is not really in a position to tell the Board what or how to do things. They are an adviser only in these things. Beyond that, they are an agent of the Board. As such they are bound to represent the Board.

Now the Board may take serious issue with the manager breaking the confidence by showing you the letter. But that won't really help you as the next manager will simply do a better job of being on the Board's side of things.

AliceB3 (Florida)
Posts: 8

Posted:

Kirk,

Thanks for the post. I realize the management company wants to be on the good side of the Board becuse they want their job. We have had some really bad ones but this one is working out good.

A secretary showed and copied the letter. It verifies a lot of things I needed. I have no doubt that she would loose her job if the owner knew.

So I have definitely come to the conclusion of filing a complaint with DBPR, which really is practically doing next to nothing. Has anyone out there had any dealings with them? I would love to hear them. All I am trying to do is reign this President in a little so that he knows he cannot keep doing things that COST MONEY unilaterally and without the consent of the unit owners. If he keeps it up I will have to move because I won't be able to afford to live here!

Thanks everyone for all the good advice. And please, anyone with comments about the DBPR please share them.

Alice

AliceB3 (Florida)
Posts: 8

Posted:

Hello everyone. I am really in need of some help here. Things have gotten worse and I am filing this complaint with DBPR. There was also a material alteration done through a "straw vote." A lot of people are away but I can see the fines and violations piling up as soon as this board president returns. He has a real ego problem. In any event, has anyone that is from Florida ever filed a complaint with DBPR? I need as much information as possible and have gotten a lot by searching for hours. I would just like to hear about personal experiences. This is not an easy thing to do and it has to be done correctly. Thanks.

Alice

SusanW1 (Michigan)
Posts: 5,202

Posted:

Alice - be careful what you complain about to an agency.

You say the president haa a big ego - No agency will do anything about that.
They won't do anything about him cooking on his balcony
They won't do anything about people following the bylaws, which were voted on at a valid meeting (HIS one vote did not make that much difference in the result, right?)
They probably wont' do anything about a questionable proxy form.

If you are unhappy with the bylaws, then work to change them.

Leave all personal feelings for a about this person to the side.
He/she will continue to reveal him/herself in the future, if he/she is such a bad president.

P.S. What SPECIFIC changes take power away from the residents and give it to the Board?

AliceB3 (Florida)
Posts: 8

Posted:

I am truly happy for you that you know ALL the answers and you don't even live in Florida. Who died and made you God? You need a lesson in how to correspond with people. You didn't even understand what I was saying with your know it all attitude.

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