Ask An Expert: Your HOA, Condo Questions

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By: Avi S. Tryson, Esq. Special to the Boca and Delray newspapers

Q:  Hi, I am a homeowner in a condominium building and I think that our board is creating rules that might not be legal. Can you please explain the process to me?

N.L., Boca Raton

A:  First, you need to check your association’s governing documents to find out what rules and regulations the board is authorized to make. For example, if the board isn’t authorized to make any rules and regulations governing the inside of a unit in the building, then they can’t pass any rules that affect the inside of a unit. Assuming that the board has complied with all of the administrative requirements with respect to enacting a rule pursuant to Florida Statutes, Section 718 and the association’s governing documents (i.e. the meeting was duly noticed (at least 48 hours for rules affecting the condominium’s common elements, and at least 14 days for any rules affecting the inside of a unit), a quorum of the board was present, etc.), there are two cases that established the test to determine the validity of a rule enacted by the board.

In Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637 (Fla. 4th DCA 1981), the Court stated, “In those cases where a use restriction is not mandated by the declaration of condominium per se, but is instead created by the board of directors of the condominium association, the rule of reasonableness comes into vogue. The requirement of reasonableness in these instances is designed to somewhat fetter the discretion of the board of directors. By imposing such a standard, the board is required to enact rules and make decisions that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners. In cases like the present one where the decision to allow a particular use is within the discretion of the board, the board must allow the use unless the use is demonstrably antagonistic to the legitimate objectives of the condominium association, i.e., the health, happiness and peace of mind of the individual unit owners.”

In Beachwood Villas Condominium v. Poor, 448 So. 2d 1143 (Fla. 4th DCA 1984), the Court stated, “…we have formulated the appropriate test in this fashion: provided that a board-enacted rule does not contravene either an express provision of the declaration or a right reasonably inferable therefrom, it will be found valid, within the scope of the board’s authority.”

Therefore, as long as the board has complied with all of the administrative requirements with respect to enacting a rule pursuant to Florida Statutes, Section 718 and the association’s governing documents, and the rule is authorized pursuant to the association’s governing documents or it is for the health, safety, and welfare of the community, then it is a valid rule.

Q:  I live in a condominium and I’m new to my board, and I’m wondering who makes the decision of what items are put on the agenda. If the directors don’t agree on what goes on the agenda, what happens?

G.C., Boca Raton

A:  Pursuant to, 718.112(2)(c) Florida Statutes, if at least 20 percent of the voting interests (i.e. the members) petition the board to address an item of business, within 60 days after the board receives the petition, the board must put the item on the agenda at its next regular board meeting or at a special meeting called for that purpose.

However, there isn’t anything specifically in Florida Statutes, Chapter 718 that creates a procedure for the directors to put an item on the agenda. Therefore, you need to check your bylaws to see if this topic is specifically addressed. Typically, we see language that a majority of the board has the authority to put items on the agenda. If your documents are silent, our position is that a majority of the board has the authority to put the item on the agenda.

Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.