Do Owners in foreclosure have voting right?

Started by DonnaS4 • 16 replies • 2991 views

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DonnaS4 (Florida)
Posts: 16

Posted:

We currently have 7 condos in the process of foreclosure. Most of the units are vacant and the official transfer of title to the bank is still caught up in the courts. Of course, monthly assessments are in arrears to the tune of thousands of dollars. Do these owners have voting rights in the annual election of the board> And are these seven units counted to meet a quorum for the annual meeting? I do not see any referenece to this in the Fla St 718 or our bylaws. Can anyone help?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Donna,

Your answers lie in your gov documents. The CCRs may have a provision prohibiting members from voting if delinquent, if they do then these 7 members could NOT cast a vote. Check out the quorum requirements to determine if members not in good standing can be counted toward the quorum. If these members' homes are in foreclosure I doubt they will be interested in voting especially since they don't even live in the community any longer!!

LoriL1 (Florida)
Posts: 78

Posted:

Please keep in mind that Florida Statutes take precedence over our condo docs. There is no provision in Florida Statute Chapter 718 (Condo Law) to prohibit the voting rights due to foreclosure or non-payment of dues. There are several bills currently being proposed to add this to the Statute, but they have not yet passed.

LoriL1 (Florida)
Posts: 78

Posted:

I would like to further add that for information specifically related to Florida Statutes you can email the Division at [email protected]. I have done this several times and they are always very quick to respond. The website address is http://www.myfloridalicense.com/dbpr/lsc/condominiums.html (condo assns)or http://www.myfloridalicense.com/dbpr/lsc/homeowners.html (homeowner assns)

DonnaS4 (Florida)
Posts: 16

Posted:

Thanks Lori,
That is very helpful. I always thought that the Condo Docs did over rule the Statute.

JodyC (California)
Posts: 3

Posted:

Hi Donna. You may also want to check your CC&R's as many of them provide the right for the board to restrict common area usage to delinquent homeowners. These usually include, gym facilities, pool facility, valet parking,guest parking. We do not provide guest parking passes or valet services to delinquent homeowners. Don't know if this helps or not, but just another way to keep the pressure on to insure you collect what is owed.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Lori & Donna,

While it's true that in most instances State law overrules the assn docs. However, if something is not addressed by state law and it is addressed in the assn's gov docs then what is in the docs prevails. Since there is no provision in the FL condo law, then the assn's rule that members not in good standing cannot vote is what must be adhered to.

If the member who is in foreclosure is delinquent in the HOA assessment then he would not be in good standing. However, if a member who is being foreclosed by the bank but continuing to pay his HOA assessments then he would still be in good standing and eligible to vote.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Doesn't this still leave the question of "Quorum" unanswered or if you reduced the number of qualifed votes does this automatically change the # of homeowners to meet quorum and the percentage stays the same?

TimB4 (Tennessee)
Posts: 21,047

Posted:

Quote:

Posted By RobertR1 on 03/17/2010 11:15 PM
Doesn't this still leave the question of "Quorum" unanswered or if you reduced the number of qualifed votes does this automatically change the # of homeowners to meet quorum and the percentage stays the same?

Robert,

That also depends on the wording of the governing documents. IMO, a quorum is based on a percentage of the number eligible to vote vs the membership as a whole.

Tim

LoriL1 (Florida)
Posts: 78

Posted:

Donna,

Whenever any association plans to restrict the rights of an individual member, whether it is voting rights or common element use rights, they should first seek professional counsel. As indicated in the General Legal Notice at the bottom of the discussion page, readers should not act upon the information provided in the forums without seeking professional counsel. Also, I would again strongly encourage you to contact the Division at [email protected].

Lori

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

The bylaws most likely address both the quorum and voting % as two separate, distinct topics. Depending upon what the bylaws say both may be determined either by ALL the members of the assn, by only those present in person or by proxy or by those eligible to vote.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary,
What do you do if your documents say 100% is 68 units. You may have five members in default with no vote which means total vote is 63 units. But wait, this is a condo and the vote is apportioned based on 68 units equals 100%.

I believe my documents says something like this and definitely says that apportionment can never be changed without a 100% vote. So in a condo, if you take away the vote and change the apportionment, does this matter when it comes to deciding a quorum or deciding a majority for a roll call vote.

I don't have a clue.

RogerB (Colorado)
Posts: 5,067

Posted:

I believe that a MEMBER of an HOA is not the same as an OWNER of a property within the boundaries of and controlled by the Declaration of CC&Rs. The owner may be a member of the HOA and as a MEMBER not in good standing the Bylaws may prevent them from voting on almost all matters. However, as an OWNER they are allowed to vote and count when it comes to amending the Declaration of CC&Rs unless the Declaration specifically states they are not allowed and are not counted towards the percentage required to amend.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Roger,

You've confused me!

In an HOA the members ARE the property owners. I've never heard of non-property owners being members and have never heard of property owners that were not members.

Please explain your statement.

The CCRs and the bylaws usually state whether the quorum is based upon ALL members of the assn, only those members present in person or by proxy, or only those members eligible to vote (meaning in good standing).

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I'm not sure that I understand your question.

I'm not that well versed on condos, however, in thinking of the meaning of apportionment I would think it only has to do with what share of the condo each unit ower has. I don't know that it would have anything to do with quorum requirements. The quorum requirements are usually stated as I noted in my last message. If the quorum requirement is not 100% that doesn't mean the apportionment has been changed. Regardless of what the quorum requirement is, each member is still going to have the vote that has been apportioned (most likely one vote) to him, that is IF he is eligible to vote.

RogerB (Colorado)
Posts: 5,067

Posted:

Mary, here are two examples to explain members vs owners.
1. In a voluntary HOA not all owners are necessarily members of the HOA; only those owners who chose to join.
2. In a manditory HOA all owners are members of the HOA but if the Declaration statse that it requires xx% of the OWNERS to amend the Declaration while the Bylaws state MEMBERS who are not in good standing may not vote, the owners, who are members not in good standing, would be counted to meet the percentage requirement and are allowed to vote as owners (no document states otherwise). The word OWNER is not the same as the word MEMBER. This may be considered by some as a technicality but I would not count on the law to see these words to mean the same thing.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Roger,

Of course I was speaking of a mandatory HOA. We don't very often have discussions about volunteer assn; however I should have been more clear.

But, I don't see the difference especially if the CCRs (and I believe this applies to the majority of mandatory HOAs) specifically state that all property owners are automatically a member of the assn. Also whatever is stated in the CCRs overrules any contradiction that may be stated in the bylaws. So if the CCRs say "owners" and the bylaws say "members", then "owners" would apply -- if there was some confusion, that is.

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