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Subject: Members Intentionally Misinformed to get Amendment Passed
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SusanK12
(Florida)

Posts:2


02/04/2018 4:45 PM  
Our Florida cooperative currently requires three-year terms for board members. Our Board recently held a vote to amend our bylaws to change to two-year terms. Prior to the vote, our management firm told us that two-year terms were required by law. Based on that information, the amendment passed, and our cooperative spent money to have the lawyer draw up the amendment and now will spend more to have it recorded. Since then, several non-board members have done much research and can’t find anything in the law requiring 2-year terms. The management company refuses to give us the law that they used as a basis for their recommendation, despite requests from us and a sitting board member. We suspect that there was some kind of agreement between the management company and one or two specific board members in order to get the amendment passed. We now feel we had the “wool pulled over our eyes” and wonder if there is anything we can do to reverse this, or get the board to take another vote after informing members of the truth?
TimB4
(Virginia)

Posts:15724


02/04/2018 8:43 PM  
Posted By SusanK12 on 02/04/2018 4:45 PM

We now feel we had the “wool pulled over our eyes” and wonder if there is anything we can do to reverse this, or get the board to take another vote after informing members of the truth?




Unfortunately, the members should have verified what they were being told prior to voting. After the vote is in it's too late to stop the process. However, the members can petition for a special meeting and amend the governing documents again to change it back to what it was.

The members can also show their displeasure by recalling the board and electing new ones.



GenoS
(Florida)

Posts:2087


02/04/2018 9:04 PM  
If your Bylaws provided for 3 year terms and the law required 2 year terms, the law would take precedence and, technically, you wouldn't need to amend your Bylaws, just follow what the law said. Get together and change it back if you feel strongly about it. The only way to "punish" the board and management company who lied to you is to vote the bums out, dump the MC and hire a new one. Yes, you'll end up paying the attorney twice but them's the breaks. The research should have been done earlier. Did the attorney also mislead the board or owners on what the law says? Depending on the answer you might want to hire a new attorney as well.

Unfortunately there's no good way to really punish the cretins.
JanetB2
(Colorado)

Posts:3959


02/04/2018 10:45 PM  
Hi Susan ... Welcome to the Forum

First question is what do your Bylaws state with regards to who can amend???

Potentially if your documents allow the BOD to amend then you and your fellow owners can replace them and retract their decision. If your Bylaws are silent on the issue then it potentially would take 2/3 of members to agree (yet you stated was a BOD vote) as noted in this article: http://myfloridalicense.custhelp.com/app/answers/detail/a_id/1913/~/how-does-a-condominium-or-cooperative-association-amend-its-bylaws%3F

Here is a link to your FL Statutes regarding Cooperatives:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0719/0719PARTIContentsIndex.html

At a quick glance I do not see anything noting State Law regarding term limits. Most States leave that to the HOA’s and their governing documents.
SheliaH
(Indiana)

Posts:2156


02/05/2018 9:48 AM  
What Tim said. Besides, the management company works for the Board, not the other way around, and their specialty is property management, not necessarily HOA law. If anyone was concerned as to whether there was a state law or not, they could have asked before the vote was taken. The board member who's also asking about this should have known better and asked the association attorney himself before all this happened.

I really don't see how the management company benefits by board members having two or three year terms anyway because they will take their direction from the Board regardless of how long anyone serves on it. This amendment changes the length of the term and isn't the same as term limits, so if that's what you're really concerned about, that would require another amendment for or against.
BenA2
(Texas)

Posts:401


02/05/2018 10:40 PM  
If the management company intentionally misled you then they, at minimum, violated their code of ethics and possibly the law. Just a quick web search shows that there might have been some confusion with a new law in Florida, so maybe they were misinformed.

Either way, I would think the remedy would be to go to court and have the amendment invalidated, but that would only cost the association more money. Is it worth it?

I would be concerned that now the management company is not being open with you. They may be hired by the board and answer to the board but their fiduciary responsibility is to the association.

SusanK12
(Florida)

Posts:2


02/10/2018 8:36 PM  
Thank you all for your helpful responses. You are right...we all should have done our due diligence prior to the vote. We now are stuck with two-year terms which were approved by 2/3 of our members who thought it was a requirement. I agree with Ben that we should be, and indeed are concerned that the current management company is not being up front with us, while admitting that there could have been a misunderstanding because of a recent change in the condo law (which would be just about as bad, because the manager is supposed to be a CAM and know this stuff). At any rate, once the upcoming election is over, we can decide if we want to go through the hassle of changing our documents back to require three-year terms. It is good to know that we have the option to try, if we so choose. Thanks again for your helpful feedback!
KerryL1
(California)

Posts:5160


02/11/2018 9:00 AM  
It may not be worth the hassle, Jill. In my HOA and it seems like a majority of the ones I read about here, 2-yr. terms are typical.
MelissaP1
(Alabama)

Posts:7294


02/11/2018 11:35 AM  
I went through a similar experience. Fought it all the way. Took 6 months later when everyone realized the mistake. It wasn't exactly changing the board terms but the board did do that later. (A way to keep me out...).

My advice is to realize the HOA's relationship with the MC. They are a hired contractor to the HOA. I wouldn't necessarily rely on them to be the most informed resource of HOA management. That source is your own documentation. Remember the MC doesn't follow your HOA rules. They are their own company hired to manage.

Nothing wrong with a 2 year term. Ours was 1 year. I wouldn't want a 3 year term of board members. My rule of thumb is I would never sign a contract for more than one year. Why would I not want that option with my board?

Former HOA President
BenA2
(Texas)

Posts:401


02/11/2018 12:35 PM  
Posted By MelissaP1 on 02/11/2018 11:35 AM
I went through a similar experience. Fought it all the way. Took 6 months later when everyone realized the mistake. It wasn't exactly changing the board terms but the board did do that later. (A way to keep me out...).

My advice is to realize the HOA's relationship with the MC. They are a hired contractor to the HOA. I wouldn't necessarily rely on them to be the most informed resource of HOA management. That source is your own documentation. Remember the MC doesn't follow your HOA rules. They are their own company hired to manage.

Nothing wrong with a 2 year term. Ours was 1 year. I wouldn't want a 3 year term of board members. My rule of thumb is I would never sign a contract for more than one year. Why would I not want that option with my board?



While there are bad managers, a certified manager is informed on HOA management and is obligated to act in the best interests of the HOA, which means following the government documents. Any manager who doesn't should be fired and, if they are certified, should be reported to the certifying agency.
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