It is unclear whether homeowner associations can impose time limits


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Dear Poliakoff,

We are currently grappling with the issue of term limits in our HOA. Florida HOA law states that any resident can run for the board. One group says that because the law says ‘everything’, you can’t stop someone from showing up multiple times. Another group says this is a misinterpretation and that one thing has nothing to do with the other. Your thoughts?

Signed, MK

Dear MK,

Unfortunately, this is an undecided area of ​​the law, and as far as I know, there has been no arbitration on this point (HOA election disputes are subject to arbitration with the Condominium Division). Lawyers, like your HOA groups, often disagree on these issues. Some (myself included) feel that the wording in HOA (Section 720.306, Florida) that states “all members of the association are eligible to serve on the board” effectively invalidates term limits, as well as d other limitations on council service, such as residency requirements. These lawyers argue that the only prohibitions against the board of directors are those found in the law itself (being overdue by more than 90 days in the payment of any fee, fine or other monetary obligation to the association; or having been convicted of a felony and not have had their civil rights reinstated for at least five years). Other lawyers argue that the term limits contained in the governing documents would still apply. Unfortunately, until this question is argued, we simply don’t have a clear answer.

Dear Poliakoff,

I live in a community governed by a master association. Their attorney recently proposed changes to the governing documents that include a new section titled “Individual Assessments.”

When asked why it was added, she replied that it was simply to clarify the association’s existing right to impose individual assessments, even if it does not appear in the current statements.

Is this a ruse that will be used in the future to expand the HOA’s ability to add individual ratings for some reason?

Signed, GO

Dear GO,

Language allowing an HOA to charge for “individual assessments” is extremely common. Most of the time, it is used to allow the association to bill the repair costs to an individual owner. For example, many HOAs have the right to enter a lot to rectify a maintenance violation and then charge those costs to the owner (for example, when a lot owner fails to keep their yard clean and mowed , which is very common in Property entries). The wording “individual appraisal” in their return would allow them to enter the lot, charge the owner for the cost of the repair work, and then collect those amounts as appraisal. Alternatively, individual assessments can be used to collect charges that are otherwise attributable to only one lot, for example the repair of a roof (which is sometimes the responsibility of the association, but is not common expense). I assume your main association already allows some of these charges, but it doesn’t specify that these charges are considered an appraisal (and are therefore recoverable by lien and foreclosure). This new language would correct this problem. I don’t think, however, that this would open the door to the association charging individual owners for whatever it wants. In general, the powers of the association remain limited to those defined in the statutes.

Dear Poliakoff,

Our co-op statutes have been in place for many years now, and there is a “no child under 12” restriction. Are we able to change this by our statutes, ourselves, or does it require us to hire a lawyer?

Signed, HZ

Dear HZ,

As you know, the Fair Housing Act prohibits discrimination against people on the basis of their “family status” – or, indeed, discrimination against them for having children. So unless you qualify for senior housing, the restrictive language of your bylaws is unenforceable and should be removed.

Whether you hire a lawyer to do the job really depends on your board’s understanding of legal issues. There are many pitfalls you can fall into when editing documents. You could prepare the meeting package incorrectly, you could conduct the meeting improperly, or you could file an inappropriate certificate of amendment. It’s probably worth the little legal expense (a simple project like this really shouldn’t take more than 5-7 hours to prepare, and that can be a high estimate) to avoid the possibility of an invalid amendment. I very frequently see amendments prepared by the owners themselves that have either been poorly drafted or signed into law. At least, if you decide to do it yourself, be sure to follow the legal requirements for cooperative modifications found in Section 719.1055, Fla. Stat.

Ryan Poliakoff, Partner at Backer Aboud Poliakoff & Foelster, LLP, is a Certified Specialist in Condominium and Planned Development Law. This column is dedicated to the memory of Gary Poliakoff, a pioneer in the community association legal industry, tireless advocate and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Send your questions to [email protected]. Please be sure to include your location.

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