HOA Q&A: Can a smoker 'grandfathered in' to a smoke-free community have the status removed?
Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables, and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: I have lived in the same unit for 29 years and smoke cigars on my balcony. In 2016 the Association voted to go smoke free, but I was grandfathered in the documents. Now with new board members and many new residents there is a movement to remove my status. What can I do about this? -- P.G., Treasure Coast
A: When you say you were “grandfathered in the documents,” I am assuming you mean the amendment or rule that imposed the smoking prohibition contains a provision that excepted you from the restriction. If this is the case, then the rule or recorded regulation would have to be amended to remove the grandfathering clause. In my opinion, if this is done by a proper vote of the Board, if it is a Board adopted rule, or a membership vote, if it is in the Declaration of Condominium, then the grandfathering can be removed. My opinion is based on the Florida Supreme Court case Woodside vs. Jahren which held that certain rights granted in the Declaration can be amended or removed if done properly according to the amendment provision in the Declaration.
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Q: While the board of directors has done some good things, I am greatly disappointed in their actions at a recent meeting. They broke the law at least four times that I could see. First off, they broke the Florida Sunshine Law that says all association business has to be discussed in a properly noticed meeting. The Board simply announced at the meeting that they had decided to appoint a particular owner a vacant seat on the Board. There was no previous discussion on the matter, as this was simply the pronouncement. They then proceeded to take a vote on the matter. This vote was also illegal because they had not placed the item on the agenda. The board needs to have discussions on association business in the open that can be attended by residents, and they need to notice the item on the agenda. The other violations also involve the Sunshine Law. I had put in a request to have a vote to convert from line-item reserves to pooled reserves. Since it was not on the agenda, I asked what was happening and was told they had discussed and dismissed the idea. Again, not in a meeting but among themselves. Another violation was when a director was discussing a contract that is going to come before the board. She stated that she had called the individual board members to discuss and gain consent. They need to call a board meeting to conduct association business, so interested ownership can see what they are doing. -- R.T., Boca Raton
A: The condominium, cooperative and homeowner association statutes provide that if a quorum of the Board is together and discusses association business it constitutes a meeting and must be properly noticed. Further, the owners have a right to attend Board meetings (with limited exceptions) and speak on all agenda items. However, the same statutes also provide that the Directors can communicate via email but cannot vote. Communicating via email does not constitute a meeting even if all Directors are on the email chain. Therefore, if the discussion on who to appoint to fill the vacancy was among the Board via email and the actual vote is held at a properly noticed Board meeting, this is not a violation of the law, in my opinion. However, I do caution Boards not to use email to such an extent that the votes at Board meetings become a perfunctory “rubber stamp” without any open discussion at all. Further, if in the other instance the Director spoke to each Director individually without a quorum present that is not illegal, but again, the Board would need to hold a properly noticed Board meeting to actually vote on the contract.
Q. I made a request to inspect and copy the official records of my HOA. I only asked to see about 10 pages of records. I was told that I had to pay 25 cents per page for the records. I thought the HOA law provided that an owner can get up to 25 pages free of charge. Is this true? -- Unknown
A. No, it is not true. Florida Statute 720.303(5) provides that if the Association has a “photocopy machine” on-site then you can use it to copy up to 25 pages of records. However, the same Statute provides that the Association can charge 25 cents per page for the copies. Note that the Condominium and Cooperative Statutes do not contain the photocopy machine provision found in the HOA Act.
Richard D. DeBoest, Esq., is a Partner of the Law Firm Goede, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: [email protected]. 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, 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.
This article originally appeared on Treasure Coast Newspapers: HOA Q&A: Does the Sunshine Law allow boards to communicate via email?
