Florida HOA boards violate law

Jim,

As far as the Statutes say, it is 30% of the membership for a quorum UNLESS the governing documents state a lower number. Your documents state 33% and up until now with what Becker and Polikoff says, it has been whatever the governing documents state.

They are a huge firm, having hundreds of HOA lawyers and one of my associations had used them. We did hire another firm because of a few questionable opinions which differed from other legal opinions. So I would question where they based that opinion on. As I said, the State uses 30% or lower but the association just cannot change that quorum requirement without an amendment to the by-laws which addresses the number unless the State would say "(under no circumstances)".

I would need to see the exact wording of the bylaw. Also, is this what you are referring to as to what the attorney used as reference?

---720.306 Meetings of members; voting and election procedures; amendments.--

(1) QUORUM; AMENDMENTS.--

(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

George,
I agree with your opinion and because of the Florida mediation requirements, it would never reach a court.. A question would be can the meeting be declared invalid, thus the vote taken by the Board also not valid?

Again, even in mediation, most likely the plaintiff would have to demonstrate that harm had been done to invalidate the results of the meeting. A mediator would most likely operate on the presumption that the meeting was legal, and the votes valid, unless a reasonable likelihood of a different outcome could be shown. If the votes were close--one or two votes could have changed the outcome--then a case for probable harm may be successful.

It may be a "no harm, no foul" situation. Certainly, the board could be admonished for violating the governing documents, but leave it at that.

I note that the poster did not attend the meeting and did not indicate a vote by proxy. As such, he would have little standing in either mediation or adjudication to challenge the outcome. Not attending a meeting is never the best way to challenge its validity or outcome. If one wants to protest the absence of a quorum, one should attend and state that the only reason for attendance is to make such a protest. In such instances, attendance would not count toward the quorum.

Maybe I'm being obtuse today, but from what I see in the snippit of 720 that Donna posted, it looks to me like the meeting and vote where valid.

The law states Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent ... To me, that says that the law requires that the percentage can be no more than 30%. A lower percentage is allowable if stated in the bylaws, but a higher percentage (such as 33%) is not allowed. Thus I would think that the OPs Board and their legal firm were correct.

Even so I agree with George. Even if I have completely missed it, I doubt if the case would go anywhere in court.

Thanks guys for the comments.
I would not presume that there was "harm". My contenton , although I was unable to attend the meeting , is that that by-laws ,articles of incorporation and covenants were violated. This is an issue of governing document compliance. If the attitude to be followed is "rules do not have to be followed" then why go to the touble of writing them. And lets all stay home and don't worry about HOA Boards complying.

Here is what our by-laws say:
Section 9. Quorum. Except as otherwise provided in these Covenants, the presence in person or by proxy of at least one third (1/3) of the members having voting rights under the Covenants with respect to the matters to be adressed shall constitute a quorum at all meetings of the Association."

Let's here it for the Becker and Polikoff lovers.

Dwight,

Your second paragraph is what Becker & Polikoff probably issued their opinion on. Because of rewritting specific Statutes for HOAs after 2000, they should have followed thru more and included Articles of Inc specifically adapted for HOAs but they did not.They let us use the Statutes for all Not For Profit Corps. And in the heirarchy of documents, Articles of Inc are over any Bylaws. P.S.--Not obtuse today, just sharp

Obviously I am not a lawyer. But what I have seen so far would lead me to believe that:

The original law stated that in order to lower the quorum requirement a quorum under the old requirement had to be met. Meaning that if an organization had a 50% quorum, then they would have to get 50% of the votes available present to lower the quorum to say 30%.

Then another law was written that stated that the quorum requirements shall be set at either: 30% or a lower figure as specified in the organization's bylaws.

So I would say that if 30% of the ownership was represented in person or by proxy, then the meeting was valid. Perhaps one could argue that they would have to get 33% of the membership represented to change the bylaws. But since there is an overriding law placing quorum at 30% or lower, then I don't think they need to get more then 30% of the ownership for any business including changing the quorum requirement.

Great Posts........
Could a solution be this: "all HOA's in Florida will comply with the State mandated minimum 30% quorum level and no mention shall be necessary in controling documents except "Florida Statute will be follwed". This has got to be nailed down so there is no confusion...some of us are not lawyers....just regular folks who want to get it right.

I have no argument with a "number" if the membership accepts it. But what if a membership wanted 35% to generate and promote interest and keep control...it is disallowed. It would seem to me that a government would want to set a MINIMUM to be sure that no board could come in and accomplish things with extremely low membership participation. It seems unreasonable that an association would want LOWER than 30% membership oversight. Maybe I'm wrong.

The reason I am working this is because there will be, hopefully , a law written in Florida in 2009 that will be signed to give HOA's the same protection as Condo's now have.

Again...great posts...Jim

I questioned our attorney on this and here is his reply. "You are correct in that Section 720.306, Florida Statutes, states that a quorum is to be 30% of voting interests. As that is the law of the State of Florida, that simply serves as a baseline for the minimum voting interests necessary to constitute a quorum. An association is always free, however, to make their quorum requirements more stringent than the minimum standards set out by Florida Statutes. In other words, your associarion and any other are free to require in your by-laws that a greater percentage than 30% (1/3 in your case) be present to constitute a quorum, however you are not able to adopt by-laws which would fall below the 30% baseline set by Florida Statutes. The association is absolutely free to change the quorum requirements from 33% to 30%, however because the quorum requirement is set out in your by-laws, it will require an amendment to those by-laws in order for the change to 30% to be proper."

Jim, Don't quote me, but due to a situation I have had to deal with recently, I think the Law you mention is in the works and agree that HOA's should have the same rights. However, depending how a community is set up. Lived in a situation which was set up under both Condo & HOA. Go figure...Depends on the developer and their legal reps.

My personal opinion on the 30% sucks.............Majority should rule in any given situation. Only going to guess that you have residents who never read the docs and come and go and expect the "Association in the sky" will just take care of everything. My complements to you for keeping up on things.