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CarolynB4
(Florida)

Posts:1

05/16/2008 10:52 AM
OUR ASSOCIATION JUST LOST AN ARBITRATION CONCERNING OUR LAST ELECTION. WE FOLLOWED OUR BY-LAWS AND A SMALL GROUP OF MEMBERS ARE UPSET BECAUSE WE DID NOT ACCEPT THEIR PROXIES. THE "OTHER SIDE" USED FLORIDA STATUES 720, 617 & 718 IN THEIR ARGUMENT. ALL OF THESE STATUTES MAKE THE STATEMENT THAT UNLESS OUR GOVERNING DOCUMENTS STATE OTHERWISE, PROXIES ARE NOT USED. OUR BYLAWS ALLOW VOTING BY ABSENTEE BALLOTS OR IN PERSON. I HAVE NO IDEA HOW THE ARBITRAOR CAME UP WITH THE DECISION TO ALLOW PROXIES WHEN NOTHING IN THESE STATUES SAY THEY ARE ALLOWED. OUR HOA ALSO SUSPENDS THE VOTING RIGHTS TO ANY MEMBER OVER 30 DAYS BEHIND IN THEIR ASSESSMENTS. THE ARBITRATOR ALSO RULED AGAINST US IN THIS. THE ARBITRATOR BASICALLY TOLD US THAT OUR BYLAWS AREN'T WORTH THE PAPER THEY ARE WRITTEN ON. IF THIS IS THE CASE, WHY DO WE HAVE THEM? HOW MANY OTHER STATUTES ARE THERE THAT PERTAIN TO HOA'S? WE HAVE BEEN TOLD BY OUR LAWYER THAT IT IS RARE THAT A JUDGE WIL OVERTURN AN ARBITRATORS ORDER. THIS SMALL GROUP CAN NOT GET ANY OF THEIR PEOPLE ELECTED TO THE BOARD AND THEY HAVE MADE STATEMENTS TO OTHER HOMEOWNERS THAT THEY ARE TRYING TO TAKE OVER THE BOARD SO THEY CAN BANKRUPT THE ASSOCIATION AND GET CONTROL OF THE COMMON AREAS. EVERYTHING THEY HAVE DONE POINTS TO THIS AND THEY ARE BEING BACKED BY A LARGE REAL ESTATE DEVELOPER. ARE WE FIGHTING A LOST CAUSE. WE HAVE PUT UP WITH THIS GROUP GOING ON 3 YEARS. DOES ANYONE HAVE ANY EXPERIENCE IN THIS AREA? WE NEED A LITTLE POSTIVE REINFORCMENT. THANK YOU FOR LETTING ME VENT.

BrianB
(California)

Posts:1591

05/16/2008 10:57 AM
can't give you much positive thoughts. Arbitration is risky: you tossed the die and came up short, and there is little to do about it other than start over. Much like the common response to unhappy homeowners, this applies: You signed a contract (when you agreed to arbitration). You can't do anything now simply because you don't like the results.

MicheleD
(Kentucky)

Posts:1444

05/16/2008 11:11 AM
well then, if proxies are allowed, per the arbitrator, get more proxies than they have and keep control. Then amend the governing documents to more ironclad ones, including creating an amendment that states that proxies are no longer allowed. Build your voting block contingent larger than their voting block contingent and make your documents bullet proof. Good luck to you.

DonnaS
(Tennessee)

Posts:2299

05/16/2008 11:27 AM
Carolyn, Boy, Lots of issues going on here. Do not get discouraged because the Arbitrator did make the correct calls. Number 1 issue.--Proxy Voting--From 720;306 (8) (8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. (I removed the rest of the paragraph to make this easier) YOUR DOCS DO NOT DISSALLOW PROXIES AND YOU QUOTED THE STATUTE WRONG " YOU SAID THAT UNLESS THE GOV DOCS STATE OTHERWISE, PROXIES ARE NOT* ALLOWED. THAT IS NOT WHAT THE STATUTE SAYS. IT SAYS ALLOWED Number 2 issue. The Statute says suspension can begin ONLY after 90 days delinquency and you did 30 days.The Statute is 720;303 (3) (3) If the governing documents so provide, an association may suspend the voting rights of a member for the nonpayment of regular annual assessments that are delinquent in excess of 90 days. MY FIRST ADVICE TO YOU IS TO GET YOUR ENTIRE BOARD TO READ YOUR DOCS AND COMPARE THEM TO THE STATUTES. This sounds to me like basic lack of Knowledge from your Board as to what each say. If you cannot understand your own CC&Rs, then you might be fighting against a group that does know and understand them. Mount your own campaign to get a better Board and get everyone involved. I also think that your statement about a Developer wanting to come in might be a little paranoid. tHE COMMUNITY IS CONTROLLED BY THE ENTIRE MEMBERSHIP, NOT JUST SOME ROGUE BUNCH (9) ELECTIONS.--Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association shall be eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings shall be conducted in the manner provided by s. 718.1255 and the procedural rules adopted by the division.

MaryA1
(Arizona)

Posts:1556

05/16/2008 3:11 PM
Carolyn, I knew Donna would have the correct info -- she's the FL HOA law guru! I hope you will heed her advise an consider this a lesson learned. It's never too late to bone up on your gov. docs. and state law. As you have witnessed first hand, it may come back to bite you big time if you don't!

SusanW1
(Michigan)

Posts:1533

05/16/2008 3:18 PM
Carolyn, you need someone to look at your bylaws and CCRs and see if they are in agreement or at least dovetail into the latest State Statutes. Do you have a bylaw committee? How old are your bylaws. Ask for help to set things right. Find a real estate lawyer who may be able to help you find a consultant to help out.

JimM7
(Florida)

Posts:54

05/16/2008 5:31 PM
It might be a good idea to review your Articles of Incorporation. That document shows legal formation of the Association filed with the Secretary of State. It will probably have wording that the "by laws" were developed from. Review FS 720.311 and see if your on safe ground. Depending on what juristiction you are in you may have a strong case for appeal. Get a second legal opinion. It might come with no cost if the lawyer thinks you will hire him. The advise given to you about controling document knowledge was sound. When I got on the board the first thing I requested was a "training session" for all the new board members. We had 5. The old guard did'nt like that......so what!

DonnaS
(Tennessee)

Posts:2299

05/16/2008 5:50 PM
Tom, Carloyn's Board has already done Arbritation (720;311) and they were given opinion that they were in error with the items that they went to the mediator with. As I read what was posted, I see NO valid reason for an appeal. That is what they paid the Mediator for, and that is an opinion and interpretation of the issue brought before him. He is trained in knowing the Statutes.. The Articles of Inc will not deal with ByLaws but just states that the Association will be governed by Protective Covenants and Bylaws. Their Bylaws are not in compliance with the State Statutes and they need to be corolated with them. The State Statutes rule over the association Bylaws. I am glad to read that your Board went to a training session for the new Board members. The new HOA and Condo bills will require Board members to go to education sessions to learn how to read their Docs and the Statutes. At last there is some progress being made in that part of Board member knowledge.

MicheleD
(Kentucky)

Posts:1444

05/16/2008 9:27 PM
Who's Tom?

DonnaS
(Tennessee)

Posts:2299

05/17/2008 4:50 AM
HOW ABOUT JIM? (Reading too many posts)

BruceF1
(Connecticut)

Posts:499

05/17/2008 7:18 AM
Carolyn, Certainly an unfortunate result, but predictable in light of the information in your post. Donna, who now lives in Tennessee, formerly lived in Florida and is well versed in Florida HOA matters. She knows the Florida laws very well and has given you some sage advice. My view is that your HOA has inherited a set of governing documents from your developer that have been poorly prepared. From the posts I've seen on this forum, that seems to happen quite often. Some documents are poorly written and contain ambiguous, sometimes even vague statements. Some are purchased from "Documents-R-Us" and maybe modified to suit a particular association. Some are prepared by lawyers who may or may not know association law. Some are prepared by the developers themselves who have no knowledge of applicable HOA law (or maybe don't even know such laws exist), so you could end up with anything from documents that are very excellent to some that are worthless. As posted earlier, you should all sit down, check your documents for compliance with the law, and rewite them to bring them into compliance. Then you need to get them approved in accordance with the provisions of the original documents and state law. After that, be sure you follow proper procedures in all your actions, and, should a similar situation happen in the future, your chances of being successful upon arbitration will be better.

MicheleD
(Kentucky)

Posts:1444

05/17/2008 3:50 PM
Posted By DonnaS on 05/17/2008 4:50 AM HOW ABOUT JIM? (Reading too many posts) Hehehe. Me, too! I was thinking that I somehow missed one and was thinking my vision was going! Sorry! My bad!

TomS12
(Florida)

Posts:19

05/19/2008 4:51 AM
Carolyn, There was a lot of misconception here in our HOA that the new laws beginning July 1st, 2008 would change many issues in favor of the homeowner. From what I understand the proposed Bill never made it. through, so nothing changed. I mention this because of your mention of the proxy issue, which I believe was part of that PROPOSED Bill. I'm assuming you're familiar with this whole matter but just thought I'd mention it because I believe the original statutes don't address proxy voting. I heard that a CONDO association bill was passed and signed by RINO Gov. Crist but doesn't affect HOAs. If anyone knows more than I on this, please enlighten me. Thanks

DonnaS
(Tennessee)

Posts:2299

05/19/2008 11:37 AM
Tom, Are you talking about 718, the Condo Statutes not addressing Proxy voting? Correct, they DO NOT. 720 certainly does have it included 720;306---(8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

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