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Subject: FL HOA Creation of Back-Charge Initation fees
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AshleyG3
(Florida)

Posts:3


12/06/2019 10:15 AM  
A Florida HOA recently emailed members about a Board Meeting in which members approved the creation of initiation charge, to only be paid by new HOA members and current HOA members who were NOT paying members in the years 2018 and 2019.

1. Aren't all meetings supposed to be noticed and open to all members. The by-laws state: "Meetings can be called by the President or majority of the Board members at any time provided notice if provided to all Board members.Board meetings are limitedto board members and invited guests

Is this a violation of FL Statue?

2. How can they charge fees based on fees paid 2 years ago?

By-laws state: "Dues shall be determined by the board based on the budget, are non-refundable and can be revisedby the board. The board maintains the right to assess members to a fee for upgrades to the park and vessel basin as deemednecessary by the board"

JohnT38
(South Carolina)

Posts:169


12/06/2019 11:51 AM  
"..are limited to board members and invited guests". If you read this verbatim it doesn't say who they have to invite.
BobB31
(Florida)

Posts:145


12/06/2019 12:28 PM  
Posted By JohnT38 on 12/06/2019 11:51 AM
"..are limited to board members and invited guests". If you read this verbatim it doesn't say who they have to invite.



That portion of the bylaw is overridden by FS 720.303(2)(a), which states:
"Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege."

So yes, if the BOD held a closed meeting to do this it was certainly a violation of the statute. Of course, the only remedy is to sue the HOA, since the legislature decided not to create a state oversight body to enforce the statute. Notice that the statute only provides penalties for failure to allow records access.

The only other remedy is to recall the board members, or vote them out in the next election.
SheliaH
(Indiana)

Posts:2847


12/06/2019 12:30 PM  
I assume you're one of the homeowners from 2018 and 2019 who would have to pay - did you read your documents and perhaps those papers you got at closing that mentioned some sort of fee and it didn't get collected for whatever reason?

Personally, I'm not a fan of retroactive action like this, so my next question is did you ask the board why they're going back in time? If so, what did they say? If not, why not?
GeorgeS21
(Florida)

Posts:1813


12/06/2019 12:35 PM  
First, is the HOA mandatory and hence, covered by FS 720? You infer this by noting "...who were NOT paying members in the years 2018 and 2019."

Second - I can't tell to what kind of meeting this refers: "A Florida HOA recently emailed members about a Board Meeting in which members approved the creation of initiation charge, to only be paid by new HOA members and current HOA members who were NOT paying members in the years 2018 and 2019." You use Board, then note "members" which usually means, well, Members of the association. Did you mean the Directors approve the initiation charge?
PaulJ6
(New York)

Posts:505


12/06/2019 2:27 PM  
Posted By BobB31 on 12/06/2019 12:28 PM
Posted By JohnT38 on 12/06/2019 11:51 AM
"..are limited to board members and invited guests". If you read this verbatim it doesn't say who they have to invite.



That portion of the bylaw is overridden by FS 720.303(2)(a), which states:
"Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege."

So yes, if the BOD held a closed meeting to do this it was certainly a violation of the statute. Of course, the only remedy is to sue the HOA, since the legislature decided not to create a state oversight body to enforce the statute. Notice that the statute only provides penalties for failure to allow records access.

The only other remedy is to recall the board members, or vote them out in the next election.




Doesn't that mean that "Meetings of the board must be open to all members" OF THE BOARD? Not all non-director members of the community.
BobB31
(Florida)

Posts:145


12/06/2019 5:59 PM  
Posted By PaulJ6 on 12/06/2019 2:27 PM
Posted By BobB31 on 12/06/2019 12:28 PM
Posted By JohnT38 on 12/06/2019 11:51 AM
"..are limited to board members and invited guests". If you read this verbatim it doesn't say who they have to invite.



That portion of the bylaw is overridden by FS 720.303(2)(a), which states:
"Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege."

So yes, if the BOD held a closed meeting to do this it was certainly a violation of the statute. Of course, the only remedy is to sue the HOA, since the legislature decided not to create a state oversight body to enforce the statute. Notice that the statute only provides penalties for failure to allow records access.

The only other remedy is to recall the board members, or vote them out in the next election.




Doesn't that mean that "Meetings of the board must be open to all members" OF THE BOARD? Not all non-director members of the community.



No.
I did miss the possibility that this was a voluntary HOA not subject to FS 720, but there is no ambiguity about the word "member" which is explicitly defined in the definitions:
(10) “Member” means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.
GenoS
(Florida)

Posts:3465


12/06/2019 9:13 PM  
BobB31 is absolutely right. There are 2 narrow exceptions to the general rule that ALL meetings of the board must be open to the members.
SueW6
(Michigan)

Posts:641


12/07/2019 5:20 AM  
Ashley,
Your board meeting time may have been established at the first meeting after the election i.e. the first Wed of the month. That would suffice for the “ notice” of the meetings for the year as long as they let members know.

GeorgeS21
(Florida)

Posts:1813


12/07/2019 5:39 AM  
Sue,

My read of Florida Statute is that a one time notice is probably not sufficient.

Again, though, one would need to know if this was a voluntary or mandatory HOA, to determine even the notice requirements.

Ashley - can you answer?
JohnC46
(South Carolina)

Posts:9035


12/07/2019 10:09 AM  
Ashley

I can agree with a fee going forward. I would not agree with a fee being retroactive.
JohnC46
(South Carolina)

Posts:9035


12/07/2019 10:11 AM  
Posted By JohnC46 on 12/07/2019 10:09 AM
Ashley

I can agree with a fee going forward. I would not agree with a fee being retroactive.




ADDED

Wrong subject. Sorry
CathyA3
(Ohio)

Posts:646


12/07/2019 11:02 AM  
Leaving aside the mechanics of how the fee was enacted, I'm more concerned about any kind of charge that applies only to a portion of the membership (aside from something like a usage fee which only those who actually use an amenity, such as the pool, need to pay).

Unless the governing docs specify different classes of membership, I don't see how this can be legal.
AshleyG3
(Florida)

Posts:3


12/17/2019 10:39 AM  
This is a voluntary HOA
GenoS
(Florida)

Posts:3465


12/17/2019 12:08 PM  
Posted By BobB31 on 12/06/2019 5:59 PM
... (10) “Member” means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.

In the context of that email I interpret "members" to mean "members of the board". By definition, the association members can't take any action at a board meeting.

Above all of this is the fact that such a fee falls under the banner of a "transfer fee" and those cannot be imposed without being authorized in the governing documents. Transfer fees are any fees or charges imposed in connection with the sale or transfer of a unit/home. It's one of the most abused things in the state of Florida.

This is one area where the Florida HOA statute is markedly different from the HOA statute. "The amount of the transfer fee or resale capital contribution fee in an HOA is regulated by the association's documents".

It is important to remember that these fees must be authorized by the community documents. If the management company in your HOA is charging a transfer or resale fee on every sale without clear authority in the governing documents, then the HOA board needs to consult with its legal counsel.
GeorgeS21
(Florida)

Posts:1813


12/17/2019 5:04 PM  
This HOA is subject to FS 617, and not FS 720, right?
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