Legal Q&A: Permission needed to remove trees?
STUART, Fla. – March 20, 2017 – Question: Our condominium has many mature and beautiful trees, one of which has been viewable from my unit for many years. The association removed the tree, claiming it received a report from a professional that the tree was dead. Does the board need membership approval to remove trees on the common areas? – A.B., Stuart
Question: The board generally needs membership approval before it can materially alter the common elements. This would include changing the paint color of the buildings, changing the railings, changing the roof material. The arbitration cases addressing landscaping, however, generally find landscaping decisions fall within the board's maintenance duty and therefore do not constitute material alterations. If the board was seeking to completely change the appearance and theme of the landscaping, that may constitute a material alteration, but the removal of a tree or the replacement of bushes or shrubs is generally found to be maintenance and not an alteration.
Question: Our condominium election is next week. Someone is going door to door telling owners they can change their vote in the election. Can the vote be changed? – B.C., Treasure Coast
Question: In a condominium, no, a ballot received by the association may not be rescinded or changed. Specifically, Florida Administrative Code Section 61B-23.0021 provides "upon receipt by the association, no ballot may be rescinded or changed." Thus, an owner going door to door would only be able to influence ballots that have not yet been received by the association.
Question: Our homeowners association documents require a nominating committee to select the candidates for the election. The management company, however, sent a notice with a deadline for nominations stating that all nominations will be on the ballot. Doesn't this conflict with the role of the nominating committee? – P.B., Port St. Lucie
Answer: This is a common question, and one that has been complicated by recent statutory amendments and arbitration decisions. Before 2013, the statute concerning HOA elections deferred to the bylaws and then also guaranteed the right of an owner to nominate oneself from the floor at the meeting. This is problematic because many homeowners associations mail out a ballot in advance of the meeting, which provides an unfair advantage to those owners nominated by the nominating committee because the ballot is not truly complete until you know whether there are any nominations from the floor at the meeting itself.
Thus, in 2013, the Legislature amended Florida Statutes section 720.306(9)(a) to provide that "if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow floor nominations at the meeting." This opened the door for homeowners associations to conduct nominations similar to condominium associations where the nominations are closed as of a certain deadline and there are no floor nominations. This can be better because the mailed ballot reflects all eligible candidates.
There is also an arbitration decision which clarifies that you may not combine the two procedures – meaning you can't prohibit floor nominations and have a nominating committee that prevents certain eligible candidates from being on the ballot. In other words, if your association has a deadline for nominations supported by the 2013 amendment to 720.306(9)(a), all eligible nominees must be included on the ballot. Thus, in a way, it can greatly diminish the role of the nominating committee.
John C. Goede Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. 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.
Editor's note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
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