Owner says rogue condo board is churning out rules without notifying residents. Now what?
Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff , an attorney and author based in Boca Raton, has answers.
Question: I'm a fairly new resident in a condo community. I've been here about two years and I'm beginning to think our condo board has gone bonkers.
They are churning out "new rules" on almost a monthly basis. None of the owners were notified about rule changes/amendments or given an opportunity to understand the need for the rule changes.
I asked the board members, who were all in the property management office last week, exactly what is the process for changing the rules. They started to explain how board members are elected on an annual basis. I again restated my question was specific to changes to the rules and he launched into the same deflection.
Perhaps of greatest interest at this point is a change requiring all modifications inside our condos to be approved by the architectural committee. In the past, that approval was needed only for changes to the exterior or load bearing walls. I don't see the rationale for obtaining approval to repaint my bedroom. The property manager reported "there was a problem with a project and damage was caused" as the reason for the change.
Is our board in violation of Ch 718.112, which states that 14 day's advance notice of board meetings is required where rule changes are considered? Signed, B.J.
Dear B.J.,
From what you've described, they are. The Condominium Act, at Section 718.112, Fla. Stat., provides that at least 14 days' written and posted notice must be provided for any meeting where rules regarding unit use will be considered. A rule requiring approval for all modifications sounds like such a rule, as probably are many of the other rules that have been promulgated.
And, even for ordinary rules, they should be passed at a board meeting. In addition, many governing documents have additional procedures for amending the rules. If the board has ignored these procedures, they may have difficulty enforcing these rules; although ultimately that would require an owner to push back in court, and that doesn't always happen.
As for the sheer volume of rules, most condominium documents give the board broad rulemaking authority both inside and outside the units, and those rules must be "reasonable."
Does the board have a legitimate association interest in the repainting of your bedroom? If you are doing it yourself, it seems unlikely; but if you're bringing in a contractor to do the work, they have a far stronger argument. Reasonableness is a factual issue that would be decided in court.
Condo owner tired of board dragging its feet in filling vacancy
: Our condominium bylaws state, "vacancies in the board occurring between annual meetings of members shall be filled by the remaining directors."
Does "shall" mean "must" and, if so, how soon must they act? Our vacancy has gone on for several months, with no attempt made to fill the seat. Is this a breach of fiduciary responsibility? We now have an even number of directors so that a tie vote is possible on the coming budget approval meeting.
How are they to fill it? Is there a nomination and voting procedure by the remaining members or does the president or the board have the right to "appoint" without any board vote? Signed, F.H.
Dear F.H.,
The traditional position has always been that "shall" does mean "must"— although there have been a few cases recently going against the grain and calling that in question. So yes, it would be my position that your directors should fill the vacancy.
As your bylaws expressly say, it is the directors, by board vote, who fill that vacancy. There is no membership meeting, they just bring it up at a board meeting, a board member will nominate someone, there may be other nominations, and then a vote. The president would not have the authority to appoint a replacement director unless the board had delegated that authority to him.
As to when they do this — there's no real guidance.
How long is a reasonable amount of time to wait? If there's an election coming up, the argument could be made to just wait it out. I don't think that this is a breach of fiduciary duty, really, and I don't think the board's failure to appoint a director, even if the bylaws require it, would be likely to result in any kind of legal penalty (other than perhaps an arbitration or court order to fill the seat, by which time the entire dispute would long be over).
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer's Guide to Condominium, Co-Op and HOA Living." Email your questions to . Please be sure to include your location.
