Answers: Preparing for Hurricane Season and Understanding Board of Directors Responsibilities, Powers, and Actions

by Richard White / Published July 2014

STORM SHUTTERS

Does Florida law allow a condominium association to require unit owners to install and maintain storm shutters? Can owners who have shutters be required to pay a special assessment due to damage to units that have not completed the installation of storm shutters? 

S.L., Aventura

This is a very timely question as we begin the hurricane season. There are several factors that allow the board to require storm shutters for every unit. Your insurance company may require this improvement. The county and local code enforcement may require this improvement. Your location and proximity to the coastline is an important factor in this requirement. The short answer is, yes, the board can require installation of shutters, but they should seek legal guidance to force this improvement. As to the question concerning some or all of the unit owners paying a special assessment, with little exception all unit owners must pay for damage repairs. Since we’re talking about hurricane preparedness and other disasters, it’s really the right time for the board to start thinking and planning. All owners should also start with emergency planning. 

It has been a few years since Florida has experienced a major storm, and we tend to be complacent on emergency procedures. Each owner is responsible for their actions to prepare for emergency situations for their personal property and life. The board of directors is responsible for the preparation for the building and common areas. If there is any question regarding either party as to their actions, you must immediately seek legal guidance.

ROBERT’S RULES’ POWERS

Our homeowner association elects a board of directors who in turn elects the president. Our covenants say that we must use Robert’s Rules. Our president talks on motions, debates with the board of directors, and says that she can speak anytime on anything. In past articles, you said that the president is not bound by these rules. This is confusing to me, as all books on Robert’s Rules say she cannot speak unless she turns a meeting over to the vice president. Can you clarify this question? 

S.P., Miami

Let me first address “orders of powers.” When there are conflicts in documents, statutes, or policies/rules, the highest order prevails when there is a conflict. It starts with the Constitution of the United States, Federal laws and statutes, state constitution and laws, association documents, and policies and procedures. Robert’s Rules falls last in this order of power. The fact is that most board of directors meetings for association business do not fall under Robert’s Rules. These meetings do fall under the state statutes wherein most officers, including the president, are first elected as directors by the members and, therefore, have every right and duty to discuss any agenda items. Therefore, since the president was elected as a director primarily, at a board of directors meeting, she is acting as a director first. Just because she has a title of president and maybe she’s chairing the meeting that does not limit her rights and duties to talk and vote on agenda items. The board has every right to establish meeting policies that conflict with Robert’s procedures. Robert’s, in fact, allows meeting policies to be established. Robert’s Rules is not written in concrete but does allow alterations of operations. Rather than try to apply Robert’s Rules, I suggest your board follow the state statutes.

BOARD’S ADVICE FOR CONTRACTORS AND VENDORS

Should the board of directors of the homeowner association have a list of contractors and services that the homeowners can trust? 

L.J., Port St. Lucie 

I rarely recommend that a board establish or create a list for the owners to provide services, repairs, or replacements. I would recommend if the board feels that they need to create such a list, they should establish requirements for repairs and replacement that comply with the documents to include styles, brands, color, materials, and other such requirements. But under these conditions, I would recommend the list include a number (three or more) who will guarantee to comply with the association’s rules and quality of work. The reason is a potential liability problem. Let me give you an example. I had a manager’s office policy that we did not provide contractors for unit owner’s repairs. But, with the board’s instructions, we prepared a list of contractors that included more than three contractors that could do repairs and replacements with the notation that the owners could use their own contractors but they had to comply with the documents and rules. The office secretary had a friend that made repairs but was not on the list of approved and suggested vendors. She recommended this contractor to one of the owners, and this unapproved contractor did a lousy job. That owner sued the association because the association “recommended” the contractor. If the board has a list of contractors, caution must be used to reduce the liability for a similar situation. I do not think it’s a good idea for the board to make recommendations. Since we are on this subject, any contractor should have proper insurance and required licenses and certifications. 

DELINQUENCY RECORDS

When requested, do condominium board members have to provide financial information concerning unit owners who are in arrears in their fees? Our property manager feels that this is a private matter and is not information to be shared with owners. I thought it was a matter of public record and should be available? 

W.C., Broward

Owners have a right to send a certified letter requesting financial information concerning delinquent accounts. How-ever, there are strict credit laws that limit the exposure of this information. This is where the problem comes into play to release delinquent account information. This information should be available to owners upon request; however, the owners must use extreme control about disclosing the information. While I recommend that the board can discuss information in an open meeting, they should not reveal the owner’s name in order to complete necessary action. Instead of saying Mr. Smith, they would say delinquency case number three or similar words. I would further recommend to the board to provide information at meetings on the number of delinquent accounts (not by name or address) and the collection procedure status. Such information would say that we have two accounts 30 days delinquent and letters have been sent. We have one account that has a lien filed and one account in foreclosure with the attorney. The board should establish a collections policy that has been approved by the association attorney. That policy would provide information as to how owners can obtain delinquency information.

BOARD’S FORECLOSURE RIGHTS

I read in your column an article stating that the board does not have the right to vote for a unit that has been foreclosed on by the association. It was my understanding that the board cannot vote for this unit in the proceedings. Can you tell me who has the powers of the board concerning foreclosure? 

G.W., Lakeland

If I read your question correctly, the association has foreclosed on the delinquent unit and now has title to that unit. In this case, the title to this property and the rights of this unit are controlled by the board of directors. Therefore, the board has the right and responsibility to vote for this unit. If they do not have title and closure resulted in an investor purchasing the unit, the board would not have the right to vote for the unit.