by Donna DiMaggio Berger / Published April 2015
Our board president has been fighting with a few members of our board for the last several months. Last week, he sent the board (and copied our manager) an e-mail saying he was resigning due to the lack of respect and the continued conflicts. Two days later, he sent a follow-up e-mail saying that he had reconsidered his decision and would remain on the board. We were all relieved that he resigned and are now concerned that we may have to take him back. Can a director just withdraw a resignation like that?
ASection 617.087 of the Florida Statutes (the Florida Not For Profit Corporation Act) provides that resignations made in writing are effective when delivered unless a delayed effective date for the resignation is spe- cifically mentioned. Since your board president tendered his resignation in writing by sending it via e-mail, and he did not specify a date in the future on which his resignation would become effective, his resignation was tendered and accepted. He cannot now rescind that resignation. His option is to ask your board to allow him to fill the seat he just vacated or to wait until the next election and run for the board again. Your situation is the perfect example of why hasty decisions to resign are not advisable as they are often regretted later.
My HOA’s declaration requires a two-thirds membership approval for special assessments. At our recent annual meeting, we came up one vote short for the special assessment. One director suggested running out and knocking on some doors to obtain the missing, necessary vote. Is this legal?
AYes, additional proxies can be solicited to advance a membership vote. Proxies remain effective for 90 days from the date of the meeting for which they were originally created. If not enough proxies are returned to either (a) establish a quorum or (b) obtain sufficient membership approval on a vote, then the meeting can be suspended and reconvened within that 90-day time frame to allow additional proxies to be collected and counted once the meeting is reconvened. On important matters, proper advance explanation and preparation to ensure the return of a sufficient number of proxies is essential.
All homeowners in our HOA received a demand notice citing “the community’s covenants re-garding mandatory reserve funding.” This notice gives only an eight-day period to make a $100 payment per household and a 38-day notice of a monthly increase in the “road” fund from $1–$8 (a 700 percent increase).
A search of all recorded documents shows no trace of anything to support these demands. The word extortion comes to mind. Your thoughts would be most appreciated.
AI would like to answer your question by introducing you to a little history of associations. Homeowner associations and cooperatives have existed for decades. Condominiums were legalized in 1962. But something came along in 1978 in California. Proposition 13 was approved by the state’s voters. That proposition told the government to reduce spending. Shortly thereafter, several other states voted on similar propositions. All the states faced reduction of spending that meant the states would have to look to other ways to create new facilities and repair existing structures. That was the point in time when states required developers to create associations to fund necessary road, utility, and other services within these communities. Locally, some counties passed requirements that developers include in their budgets an adequate road repair reserve section. I am assuming from your question that you live in one of these counties, and more than likely the developer did not have an adequate road repair reserve account.
I say road, but there could be other necessary public utility repairs. Without knowing the details, I assume that a proper reserve budget as required by the county was not calculated. The board has responsibility to create an adequate budget, and if it appears during the year that the budget was not sufficient to meet the necessary expenses, the board has the right and power to alter or adjust the budget.
Donna DiMaggio Berger, Shareholder
Becker & Poliakoff
Donna DiMaggio Berger is a Shareholder with Becker & Poliakoff and has represented all types of shared ownership communities throughout Florida. She is a member of the College of Community Association Lawyers (CCAL), a prestigious, national organization, which acknowledges community association attorneys who have committed themselves to high standards of professional and ethical conduct. Berger has worked with legislators on behalf of shared
ownership communities. She has testified before the Florida Legislature and frequently appears on radio talk shows and in print media discussing association issues. She can be reached at