Q&A: Can Members Vote to Tell Condo Board What to Do?
STUART, Fla. – Question: Many of us in our condominium do not care for the landscape company. We have asked the Board to terminate the company, but they have refused to do so. Can the members vote to require the Board to do what we want in regard to the landscaping? – D.T., West Palm Beach
Answer: Probably not directly but indirectly yes. Unless your governing documents contain an express provision requiring membership approval of vendor contracts, which would be very unusual, the decision to hire or terminate vendors performing service for the Association is a Board decision. So, a vote of the members directing the Board to terminate the landscaping company would not be binding on the Board.
However, there are several ways to accomplish your goal if you have sufficient votes to do so. First, with majority consent of the total voting interests, you could recall the Board and replace it with new Directors who are in favor of removing the landscaping company. Or you could seek to amend the Declaration to specifically require member approval of landscaping contracts and vendors. However, before taking such rather drastic measures I would recommend you obtain a copy of the current landscaping contract to determine how it could be cancelled.
Even a new Board desiring a new landscape vendor would be bound by the terms of the current contract, which could make cancellation difficult. An alternative would be to prepare a report for the Board clearly documenting the deficiencies with photos and try to convince the Board of the merits of your request.
Finally, you could seek to run for the Board in the next election and attempt to gain a majority control through the election process.
Question: The governing documents of my community provide that the Board shall consist of 7 directors. Recently, 4 directors resigned. The three remaining directors are continuing to conduct business and claim that since the annual election is in January they can let the members fill the vacancies at the upcoming election. Is this legal? – C.S., Port St. Lucie
Answer: No. It is not legal. The condominium and homeowner association laws provide that if less than quorum of the board exists for more than 30 days, any member of the association can apply to the Court to have a receiver appointed to operate the association. Moreover, because the three remaining directors do not constitute a quorum, they have no authority to conduct business. The only thing the law allows is for the remaining directors, even if less than a quorum, to meet and appoint replacement directors. They should do this as soon as possible to avoid the cost of having a receiver take over the Association.
Moreover, I would be very surprised if that between now and the January election there would be no business that would require Board action, and therefore a quorum of the Board must be seated to make decisions.
Question: I’m familiar with what the Florida Condominium and Homeowners Association Statutes say on the subject of owner’s rights to attend Board meetings. However, while both laws cite two exceptions to meetings being open to the association members (pending litigation and personnel matters), the Statute doesn’t address specifically whether or not a closed meeting of the board must be noticed. What say you? – J.C., Vero Beach
Answer: You are correct that neither Statute mentions whether or not a closed Board meeting must be noticed. In my opinion it does need to be noticed.
Both Statutes require regular Board meetings to be noticed with a 48-hour single posted notice and 14 days mailed and posted notice for special Board meetings. All meetings must be open to members except under the exceptions. The exceptions do not provide that the meetings do not have to be noticed, so my opinion is that they must be properly noticed.
However, some attorneys hold a different view in that notifying owners that a meeting with the Association’s legal counsel is occurring could strategically harm the Association’s legal position, so they advise not to notice such meetings. I do not hold that view.
Richard D. DeBoest II, 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, PLLC 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.
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