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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 5674
Experience:  28 years of experience in General Practice, Real Estate Law and Estate Law.
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I need cases Interpreting FS 718.112(2)(a)1. Boynton Beach

Customer Question

I need cases Interpreting FS 718.112(2)(a)1.
JA: Where is the property located?
Customer: Boynton Beach fl
JA: Has any paperwork been filed?
Customer: The original bylaws were filed in 1972. They provided that the Board shall consist of 3 members. it reads: The affairs of the Association shall be managed by a Board of Directors of not less than three (3) persons. The number of Directors shall be established by the Board of Directors from time to time. The By-Laws have never been amended relating to the number of Board Members. The current Board President has used the above language to control the Board by appointing her cohorts to the Board .
JA: Anything else you want the lawyer to know before I connect you?
Customer: RS 718.112(2)(a)1 sets the number at 5 if a specific number is ***** set forth in the By-Laws then the number is *****
Submitted: 22 days ago.
Category: Real Estate Law
Expert:  Marc replied 22 days ago.

Hello. My name is Marc. I'm a licensed attorney and I will be happy to assist you.

I can imagine how vexing it must be to stand by while the President consolidates her power like some kind of dictator. Unfortunately, I'm not so sure I agree with your interpretation of the statue.

The statute states: The form of administration of the association shall be described indicating the title of the officers and board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. In the absence of such a provision, the board of administration shall be composed of five members....

Thus, in order to trigger the default 5-member rule, there must be an absence in the bylaws of a provision setting forth the "form of administration," including the "powers, duties, manner of selection and removal, and compensation, if any, of officers and boards."

Your bylaws, I will presume, state the "form of administration" insofar as it describes that there will be a board, etc. The bylaws also state the "powers, duties, manner of selection and removal, and compensation..." of the board members. Thus, the required "provision" is not absent. Accordingly, the 5-member default is not applicable.

I know the statute is confusing, as most are. Hence your search for caselaw on the issue. Unfortunately, I found only two cases in which section (2)(a)1 was at issue (see attached). They are not too helpful to us, however, because they focus more on the issue of compensation, rather than composition of the board.

Therefore, it is instructive to return to the plain language of the statute: The statute provides that, in the absence of provisions to the contrary in the bylaws, "the board of administration shall have a president, a secretary, and a treasurer...." This implies that there must be at least 3 members, viz., president, secretary and treasurer. So the question becomes whether the board is limited to only 2 more members. I don't think the statute can be read that way. Instead, it states that "Unless prohibited in the bylaws, the board of administration may appoint other officers.... Now, your bylaws state that the Board shall consist of no less than 3 members. Ok - so, invoking the 5-member rule, this means the board can only consist of 3, 4 or 5 members. But an alternate way to interpret it is simply that there is no limit to the number of board members - there is only a minimum of 3. So, under this analysis, a court, for example, might see that the specific number of board members is not specified, and therefore the 5-member rule applies; OR a court could infer from the ambiguity that there is no limit. It seems ridiculous to think that your Madame President could appoint a limitless number of members. But then again - there is also no statutory limit to the number of consecutive terms she can serve.

In any case, I think the first analysis is more persuasive - i.e., the bylaws are not "absent" the necessary provisions for invoking the 5-member default.

I'm sorry this probably isn't the answer you hoped for. But I have to lay it all out as I see it. In any case, I hope you find my answer helpful. If so, please be sure to rate my answer, since that is the only way I can receive credit.

Meanwhile, I wish you luck with Madame President!

Marc

Customer: replied 22 days ago.
Marc your answer left a loot to be desired. Please review Florida Division of Land Sales, Condominiums and Mpbile Homes decision Kamber v. Kenilworth Condominium Association , Case No. 2***-**-****; Aldecoa v. Bahia Mar of Key Biscayne Condominium Association, Inc., Arb. Case No. 98-2723. Both cases hold that a specific number of Directors must be set forth in the Condominium Documents. I assume the means in the By-Laws. If a board passed a resolution setting forth a number, would that Resolution expire at the end of the year it was enacted. They could not ind future Boards with the resolution. Since no specific number is ***** forth, I presume that the statutory default amount of 5 controlls. Please review the aforesaid cases and give me your analysis. Joseph Gindhart
Expert:  Marc replied 22 days ago.

My analysis covers the statute at issue in your question. Since you require further research, I will opt out and defer to another expert.

Expert:  Attyadvisor replied 21 days ago.

I am a different Attorney and it will be my pleasure to assist you. You are correct the governing documents are required to set out the number of board members, term limits etc., In the absence of clear language setting this out the Statue would prevail. Most changes are handled through the amedment process as stated in the the case you cited http://www.myfloridalicense.com/dbpr/lsc/arbitration/allorders/2003062726.pdf

Unless specifcally stated an amendment would not expire.

Below is a list of all the laws that govern HOA's in Florida:

Homeowner Associations are governed by a chain of governing documents and laws.

"The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.

The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.

The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.

The Bylaws are the rules for management and administration.

Resolutions are additional rules and regulations that the association may adopt.

Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.

Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.​Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.

Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

State laws affecting Common Interest Communities vary widely.

  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

Florida State Laws

Florida Department of Business & Professional Regulation
Division of Florida Condominiums, Timeshares, and Mobile Homes Laws

The Division of Florida Condominiums, Timeshares, and Mobile Homes (division) has authority to enforce the following laws:

In addition, Chapters 61B-45 and 61B-50, Florida Administrative Code, contain rules relating to arbitration of disputes. Chapter 61B-25 contains rules regarding lists maintained by division for volunteer and paid mediators.

In June of 1998, the division adopted administrative rules to implement its responsibility to ensure compliance with the provisions of Chapters 718 and 719, Florida Statutes. The resolution guidelines specify the action the division will take when accepted complaints are received. The rules provide for different treatment of violations by developers and violations by unit owner controlled associations, designate violations as either major or minor, provide for different methods of complaint resolution, discuss repeat violations and aggravating and mitigating factors, and provide for civil penalties. The resolution guidelines are found in:

61B-20.004 - 61B-20.006 - Resolution Guidelines for Condominium Developers

61B-21.001 - 61B-21.003 - Condominium Resolution Guidelines for Unit Owner Controlled Associations

61B-77.001 - 61B-77.03 - Resolution Guidelines for Cooperative Developers

61B-78.002 - 61B-78.004 - Cooperative Resolution Guidelines for Unit Owner Controlled Associations

In conjunction with the jurisdiction granted to the division by the Condominium and Cooperative Acts, the following are responsibilities that the division has under Chapters 718 and 719, Florida Statutes:

Each condominium and cooperative association is required to pay annual fees to the division based on the number of residential condominium or cooperative units in the association. This fee is currently $4 per unit and is due by January 1 of each year.

The division provides training programs for condominium and cooperative association board members and unit owners, by contracting with a private vendor to provide training courses.

The division maintains a toll-free telephone number accessible to condominium and cooperative board members and unit owners. This number is ***-***-****.

The division has a program to certify both volunteer and paid mediators to provide mediation of condominium and cooperative disputes.

Homeowner Associations

Chapter 720, Florida Statutes

Chapters 61B-81 and 82, Florida Administrative Code

Community Association Manager Licensing

A community association manager or community association management firm manages community associations with 10 or more residential units or budgets of $100,000 or greater for compensation. Examples of compensation are cash, goods, services, etc.

A community association management firm must be licensed, and each community association manager within the firm must be licensed.

If you have specific questions, please contact the department at (850)(###) ###-####/strong> or review the rules for the profession at http://www.myfloridalicense.com/dbpr/pro/cam/index.html. You should also check with your county or city to learn whether or not a local business tax receipt is required for services that do not require a state license.

Office of the Condominium Ombudsman

"It is the mission of the Office of the Condominium Ombudsman to improve the quality of life for Florida condominium owners through prompt, professional and courteous service as a neutral, informative and accessible resource." Created by an act of the Legislature in 2004, the Office of the Condominium Ombudsman was established to be a resource for unit owners, board members, condominium associations and others. The Ombudsman’s duties are described in Section(###) ###-####Florida Statutes. You may e-mail your questions concerning your condominium to the Ombudsman at: *****@******.*** or call (954)(###) ###-####/strong>." http://www.hoa-usa.com/statelaws/fl.aspx

Please do not hesitate to ask me any additional questions that you may have with regard to this matter as it would be my pleasure to assist you.

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