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Subject: In FL, Can manager/officer VETO amendment by refusing to record
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ArtieM
(Florida)

Posts:7


07/31/2020 5:14 PM  
As the law in Florida requires governing documents to be recorded with the county for them to be effective, is it possible for an officer of the association or the manager to veto a duly passed amendment by refusing to actually record the amendment?

I have an interesting predicament. Late into a board term, amendments to the bylaws were adopted. All required notices, quorum, minutes, etc have been met. The documents were signed and executed by the directors and copies were sent to all homeowners with the annual meeting packet. The manager was requested to submit the amendments to be filed as it has in the past. The annual meeting was conducted in accordance with the bylaws as amended. However, this was a culmination of a 16-month review of all the governing documents to clean up obsolete language and bring the association in compliance with the law (you'd be surprised what the prior board got away with), the association participated in the draft reviews. Unfortunately due to illness the manager who supported the board efforts left, and turnover issues with the firm had us see 3 cams in the last 8 months, the last of which held a 180 degree opposite view of the first manager of the board's efforts. The end of the term and vacations were approaching and no more meetings were scheduled for the current board, with two directors not seeking re-election (myself included). It was at this point, despite having two months too review drafts before the final passage, the manager raised an objection to some language in the bylaws. A line unmodified by the amendment and still identical to the original developer version. Because of this, the manager was not going to help file the amendment and I reached out to the association attorney to help. Unfortunately, the help came too late and a new board was seated. At the first meeting of the new board, the manager advised the newly seated board to assume the prior bylaws amendment (the ones they were elected under) are null-and-void as if they never happened. And they should repeal everything the prior board did. Now I don't object to board review. They have every right as any board to amend documents and policies as long as they vote and do so in properly held meetings. We have nothing to hide. However, one of our rogue directors returned to service, got elected, and convinced the new board to make them president. So the new president and manager are refusing to allow the association to record its duly passed governing documents. Ugg.

Questions:

1. Is there any recourse to this? other than to wait a year and try to vote the rogue directors out?
2. Is there a duty by the association officers to record amendments to the governing documents within a deadline?
3. Could the prior board president or secretary simply record the governing document themselves bypassing the manager?
4. What if we are talking about a Declaration amendment passed by a super majority of the owners.... Can the board president, secretary, simply refuse to sign the document vetoing the community. (of course, they can be voted out/or recalled )
AugustinD


Posts:3683


07/31/2020 5:45 PM  
Posted By ArtieM on 07/31/2020 5:14 PM
Late into a board term, amendments to the bylaws were adopted. All required notices, quorum, minutes, etc have been met.


-- Can you please clarify: Was the procedure given in the Bylaws for amending properly followed? Was a vote of the membership required to amend the Bylaws, and if so, was this vote properly conducted?

-- I read another thread of yours. Is your HOA subject to FS 720?

-- FS 720 does not appear to me to require the recording, with the County, of amendments to the Bylaws.

-- Do your governing documents require amendments to the Bylaws to be recorded with the County?

-- If the vote to pass the amendments to the Bylaws was properly done, and your governing documents say nothing about recording amendments to the Bylaws, then I think the amended Bylaws are in effect. To force the HOA to comply with the amended Bylaws will require a demand letter and then, per FS 720, a request for pre-suit mediation. See 720.311 (2) (a) at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html
GeorgeS21
(Florida)

Posts:2902


07/31/2020 5:54 PM  
If your board is authorized by your Bylaws, to amend your Bylaws, and if your Board voted, per your Bylaws, to amend the Bylaws, then the amended Bylaws are in effect from that time of that vote.

Florida does not require recording of Bylaws.
AugustinD


Posts:3683


07/31/2020 6:02 PM  
Posted By AugustinD on 07/31/2020 5:45 PM

-- FS 720 does not appear to me to require the recording, with the County, of amendments to the Bylaws.
My bad. From 720.306 (1) (e): "An amendment to a governing document is effective when recorded in the public records of the county in which the community is located."

The amendment was not recorded. The purpose of recording a document with the county is to give notice to all of the document. Therefore, the amendment is not in effect.

Can a HOA member legally force a board to record amendments? I think not.

Can a HOA member take the documents to the County Clerk and record the amendments her- or himself? I think this would be unwise. The current board may have some reason for not recording the amendments that is legitimate. To act in the place of the board without the board's authority would likely be an unlawful act of ultra vires.

You could still seek pre-suit mediation (pursuant to the aforementioned section of FS 720) and see what the mediator says.


GenoS
(Florida)

Posts:3925


07/31/2020 6:13 PM  
FS 720.306(1)(e) says ... "An amendment to a governing document is effective when recorded in the public records of the county in which the community is located."

The governing documents are defined in FS 720.301(8)(e) [a through c] as the recorded declaration of covenants (and duly adopted amendments), the articles of incorporation and the bylaws (and duly adopted amendments) and the rules and regulations adopted (and amended) in accordance with the declaration, the bylaws, the articles of incorporation.

It's a gray area whether or not the original bylaws and rules have to be recorded. Our Declaration says they do, but that's not in the statute. The statute says only AMENDMENTS have to be recorded.

I'd propose that the manager's interpretation of whether or not an amendment adopted by the board of directors and approved by the homeowners needs to be recorded, and offering an opinion on that, constitutes the unlicensed practice of law in the state of Florida. You'd probably need an attorney to opine on that, although any homeowner can lodge a complaint against the CAM or the Management Company.
GeorgeS21
(Florida)

Posts:2902


07/31/2020 6:22 PM  
Well, shoot ... look what changed while I was asleep...

Question is, since it was not previously required to record bylaws, does the change mean HOAs, that have not amended their Bylaws since the law was changed need to record the old bylaws?

8) “Governing documents” means:
(a) The recorded declaration of covenants for a community and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto;
(b) The articles of incorporation and bylaws of the homeowners’ association and any duly adopted amendments thereto; and
(c) Rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto.

My answer would probably remain the same, though ... if the board could change, voted to change, then the new Bylaws are in effect. They simply need to be recorded. The minutes of that meeting should reflect the vote and acceptance.
AugustinD


Posts:3683


07/31/2020 6:38 PM  
Posted By GenoS on 07/31/2020 6:13 PM

It's a gray area whether or not the original bylaws and rules have to be recorded. Our Declaration says they do, but that's not in the statute. The statute says only AMENDMENTS have to be recorded.
What about this from FS 720.303 (1):

"After October 1, 1995, the association must be incorporated and the initial governing documents must be recorded in the official records of the county in which the community is located."
GeorgeS21
(Florida)

Posts:2902


07/31/2020 7:00 PM  
Augustin,

I think there was a change in what constitutes “governing document” ... maybe in 2018 ...?
AugustinD


Posts:3683


07/31/2020 7:18 PM  
Posted By GeorgeS21 on 07/31/2020 7:00 PM
Augustin, I think there was a change in what constitutes “governing document” ... maybe in 2018 ...?
Yes, 2018, but I think what you may be referring to is, as of July 1, 2018 Rules and Regs count as a "governing document." And the legislature burdened you good Floridians with having to record Rules and Regs and every change to same.

I see chatter about the Bylaws not having to be recorded in Florida, so I am not certain about the original Bylaws, despite what I quoted above.

Regardless it appears to me that FS 720 requires the amendments to the Bylaws do have to be recorded to be effective.

I am not happy to so far be under the impression that yes, a rogue-ish board seems (to me) to have a kind of veto power over duly passed amendments, by simply refusing to send an agent to record them.

Maybe the OP ought to trot down to the County Clerk and just ask them, straight up, whether he can lawfully record the Bylaw amendments?
GenoS
(Florida)

Posts:3925


07/31/2020 7:47 PM  
See this... "Florida Law Firm says No Time LImit to Record Amendments" from 2019. Similar circumstances. Not exactly the same question, though. If the manager decides to not record the amendment, that doesn't mean it wasn't passed.
ArtieM
(Florida)

Posts:7


08/01/2020 3:35 AM  
Posted By AugustinD on 07/31/2020 5:45 PM


-- Can you please clarify: Was the procedure given in the Bylaws for amending properly followed? Was a vote of the membership required to amend the Bylaws, and if so, was this vote properly conducted?

-- I read another thread of yours. Is your HOA subject to FS 720?

-- FS 720 does not appear to me to require the recording, with the County, of amendments to the Bylaws.

-- Do your governing documents require amendments to the Bylaws to be recorded with the County?

-- If the vote to pass the amendments to the Bylaws was properly done, and your governing documents say nothing about recording amendments to the Bylaws, then I think the amended Bylaws are in effect. To force the HOA to comply with the amended Bylaws will require a demand letter and then, per FS 720, a request for pre-suit mediation. See 720.311 (2) (a) at http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html




Sure thing.

1. During my tenure, we amended the bylaws twice following the same procedure. We actually restated them in 2018 (with the co-operation of management) and then amended in 2019 (to improve our annual meeting participation). The 2018 amendment was submitted for recording by management in days with zero issues. We followed the exact same procedure in 2019.

2. Our bylaws and AOI can be amended by a simple board majority with quorum present. The Declaration requires 2/3rd vote of all voting interests.

3. Yes, the Declaration, Articles of Incorporation, and Bylaws all have a similar clause. Specific to our bylaws: "These By-Laws may be amended only by the affirmative vote of a majority of the Board at a regular or special meeting of the Board called for that purpose; provided however, that these By-Laws may not be so amended by the Board in any manner which would be inconsistent with the Declaration or the Articles. Amendments to these By-Laws shall become effective upon the recordation of an amendatory instrument executed by the President and Secretary of the Association and recorded in the Public Records of Brevard County, Florida.

Posted By AugustinD on 07/31/2020 6:02 PM


Can a HOA member take the documents to the County Clerk and record the amendments her- or himself? I think this would be unwise. The current board may have some reason for not recording the amendments that is legitimate. To act in the place of the board without the board's authority would likely be an unlawful act of ultra vires.





Sorry, I was unclear in my question. Better asked: Did we make a mistake by trusting management to record the documents and instead should the Association Secretary (while still the officer) had filed the amendments on the association behalf the moment we discovered the manager won't? We actually turned to the association attorney for help, but there was little time left in the term.

Posted By GenoS on 07/31/2020 6:13 PM

I'd propose that the manager's interpretation of whether or not an amendment adopted by the board of directors and approved by the homeowners needs to be recorded, and offering an opinion on that, constitutes the unlicensed practice of law in the state of Florida. You'd probably need an attorney to opine on that, although any homeowner can lodge a complaint against the CAM or the Management Company.




GenoS, Thank you... Actually, this was one of my thoughts that I really should address the new managers' actions here and formally complain. My jaw hit the floor when I attended the first board meeting and heard the manager as a matter of fact stated the amendments were effectively null and void and the new board can simply ignore all amendments and resolutions we previously adopted without new votes. I did send a letter to the management company detailing the manager's behavior and detailing several of the false statements she was making to the board regarding the votes the prior board took. Though from the response I got, they are not interested in the matter and think this is nothing more than an owner/board dispute.

If I choose to go down this route, any pointers to where complaints against CAMs Management companies are best directed? This is a road I've never been down.

Posted By GenoS on 07/31/2020 7:47 PM
See this... "Florida Law Firm says No Time LImit to Record Amendments" from 2019. Similar circumstances. Not exactly the same question, though. If the manager decides to not record the amendment, that doesn't mean it wasn't passed.




GenoS. Agree, this was the case I made to the board. The manager told the board they need to revote on the amendments effectively trying to argue the prior vote never happened. It did, happen and the HOA simply hasn't completed the administrative chore. Indeed I found that same article you mentioned and sent it to the board so they understand there is no deadline here any future officer/agent can simply go record the document as should have been done from day 1.

The mess is the limbo in the meantime. We mailed the signed amendment to the association with our 2019 annual meeting notice and proxy. The annual meeting was held in accordance with the bylaw amendment. If indeed this amendment was not effective, is it possible that the annual meeting/director election was improper and also void? I have no desire to open that can of worms though.

Oh well, we shall see how it plays out. Obviously, I'm an amateur volunteer. So are the new board members. Human nature defaults to trusting authority thus it's been a difficult road helping the new board members to understand where they are being misled.
AugustinD


Posts:3683


08/01/2020 8:11 AM  
Posted By ArtieM on 08/01/2020 3:35 AM
[Quoting the Bylaws] "Amendments to these By-Laws shall become effective upon the recordation of an amendatory instrument executed by the President and Secretary of the Association and recorded in the Public Records of Brevard County, Florida." [snip for brevity] Did we make a mistake by trusting management to record the documents and instead should the Association Secretary (while still the officer) had filed the amendments on the association behalf the moment we discovered the manager won't? We actually turned to the association attorney for help, but there was little time left in the term.
You sound way above average as a director to me. As long as this amendatory instrument was completed and given to the manager, along with the amendments (and proof of lawful amendment?); and the board directed the manager to take the amendments to the county offices and record them; there should not have been a problem trusting the manager. I think your board was on the receiving side of bad luck with a manager not doing his or her job. Incompetent HOA management is not uncommon.

I would have zero hope that an owner reporting the manager to some authority would make a difference.

Posted By ArtieM on 08/01/2020 3:35 AM
We mailed the signed amendment to the association with our 2019 annual meeting notice and proxy. The annual meeting was held in accordance with the bylaw amendment. If indeed this amendment was not effective, is it possible that the annual meeting/director election was improper and also void? I have no desire to open that can of worms though.
I think you should reconsider your interest in this. Florida statute 720 has specific sections that address election disputes. Per FS 720, you apply to the Division of Florida Condominiums, Timeshares, and Mobile Homes in the Department of Business and Professional Regulation. The Division conducts mandatory binding arbitration. See http://www.myfloridalicense.com/dbpr/lsc/documents/HOAAdministrativeCodes61b-80and81.pdf

AugustinD


Posts:3683


08/01/2020 8:15 AM  
To challenge a Florida non condominium HOA election, this petition form has to be used:
http://www.myfloridalicense.com/dbpr/lsc/ARB/Petition-ElectionDispute.pdf. Note that the very first step has the petitioner attaching the current bylaws to the petition. The steps for filing this form are quite short. The cost to file this complaint appears to be $200.
ArtieM
(Florida)

Posts:7


08/01/2020 9:02 AM  
Posted By AugustinD on 08/01/2020 8:11 AM
I think you should reconsider your interest in this.





As stated previously, this is not desirable. However, if the argument can be made that the election is disputable it might be enough to convince the current board to do the right thing.
AugustinD


Posts:3683


08/01/2020 9:18 AM  
On the other hand (for me), since a board at your HOA can just turn around and amend the Bylaws (following proper procedures) yet again on its own, maybe the battle is not worth it.
ArtieM
(Florida)

Posts:7


08/01/2020 9:50 AM  
Posted By AugustinD on 08/01/2020 9:18 AM
On the other hand (for me), since a board at your HOA can just turn around and amend the Bylaws (following proper procedures) yet again on its own, maybe the battle is not worth it.




True and acknowledged in my OP. Then again, considering the problem director can't even be bothered to notice meetings or follow other basic procedures, I seriously doubt they can navigate a governing document modification procedure. Heck, I technically failed at it.

Obviously, with election season coming up, the issue could be moot by our next annual meeting as I am considering running again to clean help clean up this mess. The drama is just too much though. 15-minute tasks take weeks/months when one person goes off the rails.

I wanted to post here just to see if there were other options I may not have thought of.

Interestingly after I posted this, I received a call from the HOA manager requesting assistance locating records the construction defect attorneys need. The current president opposes the effort (the sole current board member) and isn't very co-operative to help. Needless to say, the association is becoming more and more dysfunctional.
GenoS
(Florida)

Posts:3925


08/01/2020 8:44 PM  
This part of the ->DBPR Website<- can be used to file complaints with the DBPR. You might want to register for it since I imagine complaints with names attached receive more attention than anonymous ones. Use the "Community Association Managers" choice in the "Board" dropdown selection.

I do agree with AugustinD to a point that filing a complaint might not have any effect at all. But you don't know unless you try.
TimB4
(Virginia)

Posts:16850


08/04/2020 6:47 PM  
Time to fire the manager and hire a new one.
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