By Laura M. Manning-Hudson / Published October 2021
A lawsuit that was recently filed against the Promenade at Boca Pointe Condominium Association highlights the importance of properly adopting changes to an association’s governing documents and recording them in the local court registry where the association is located. If the allegations in the lawsuit hold up in court, the association for the Boca-area community could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.
According to the suit, the association is making up rules to prevent condominium owners Gerardo and Ana Vizcaino from leasing their unit for a full year. The suit states that the association’s new rule, which it apparently adopted at an August 2020 board meeting after a simple vote of the board of directors, was never approved by the members by a formal vote.
Indeed, the suit alleges that the association president acknowledged in a notice to all of the unit owners that the board’s adoption of a rule restricting rentals to one tenant per 12-month period was invalid because it had not been approved by the unit owners via an amendment to the governing documents. The only restriction in the association’s recorded declaration pertaining to rentals states that owners are only restricted from renting units for terms of less than 30 days. No other restrictions are included in the recorded governing documents.
Amendments to an association’s recorded governing documents typically require a vote of the entire unit-owner membership, and sometimes minimum approvals of two-thirds or even three-fourths of the members are required for an amendment to be considered valid.
While these high thresholds make changes to recorded restrictions much more difficult to implement than via a simple board vote, that does not necessarily mean that such changes are not worth pursuing and in accordance with a community’s best practices and interests. Times change and communities evolve, and the current owners may now wish to further restrict rentals or implement other rules that require amendments to the governing documents and, therefore, a vote of the entire association membership.
In fact, this is just another of the many reasons why it is imperative for associations to work exclusively with highly experienced and qualified association legal counsel to avoid any missteps in their implementation of new rules and policies. Cutting corners to avoid costs and/or the serious challenges of conducting a vote and securing the requisite approval of the membership could lead to severe legal liabilities and exposure—in addition to having any such newly enacted rules and policies quickly declared null and void.
Experienced association attorneys should be able to discern if certain changes require amendments to the governing documents or may be enacted by a simple board vote—and the exact language that should be used for their implementation. Indeed, many of us are also familiar with all of the latest voting tools and techniques that associations are now using to implement changes to governing documents and conduct other votes of the entire membership. For example, Florida law allows for electronic voting for community associations, and new apps and websites such as OnrApp (www.onrapp.com) enable associations to plan and implement voting for all of the unit owners as efficiently and effectively as possible.
As this recent lawsuit indicates, the notion of implementing new rules that expressly contradict a community’s governing documents via a simple board vote and without the requisite approval of the membership is a losing proposition. By avoiding such misguided attempts to circumvent the system and always working in close consultation with extremely experienced and knowledgeable association attorneys, condominium associations and HOAs can develop and execute amendments and policies that are legally enforceable and in keeping with what’s best for their community and its owners.
Partner, Siegfried Rivera
Partner Laura Manning-Hudson with the South Florida law firm of Siegfried Rivera is board certified as an expert in condominium law by the Florida Bar and has focused on representing community associations since 1998. She is based at the firm’s office in West Palm Beach and is a regular contributor to its community association law blog, www.FloridaHOALawyerBlog.com. The firm represents more than 800 community associations, and it also maintains offices in Miami-Dade and Broward counties. For more information, visit www.SiegfriedRivera.com or call (561) 296-5444.