Get 1 year of free community web site hosting from Community123.com!
Wednesday, October 27, 2021











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: VARIANCES
Prev Next
Please login to post a reply (click Member Login on the menu).
Page 2 of 2 << < 12
Author Messages
AugustinD


Posts:1695


08/30/2021 2:23 PM  
CarissaM, my advice:

One way or another, your HOA has retained an attorney, correct? Is this attorney specialized in HOAs? Ask the other officers to consult this attorney immediately about your HOA not having any directors. Explain what you have explained here.
CarissaM


Posts:0


08/30/2021 2:34 PM  
Posted By AugustinD on 08/30/2021 2:23 PM
CarissaM, my advice:

One way or another, your HOA has retained an attorney, correct? Is this attorney specialized in HOAs? Ask the other officers to consult this attorney immediately about your HOA not having any directors. Explain what you have explained here.




Yes, we did retain an attorney who is supposed to be specializing in homeowners association’s. I wonder then, why didn’t he ask for the board of directors or a contact on the board of directors so that he could verify we, as the officers, are authorized to conduct business on behalf of the board?

I also wonder if it’s within the realm of possibility that the prior HOA officers were also directors and they just use poor terms not understanding the difference again I have a background in corporations and I serve as an officer but not a Director for two corporations so I do understand the difference.
CarissaM


Posts:0


08/30/2021 2:40 PM  
Can you also expand on why the association cannot issue violations? To my knowledge, we have been able to issue violations because the declarations give the association the power to do that, but not fines so our violations don’t really carry a lot of weight except we are authorized as the association to remediate an issue and charge the homeowner.

And I understand that we cannot fine because we don’t follow the Florida statutes and that would require a fining committee because again, who the heck would volunteer for that?? I am certain that the attorney said we had the power to violate and fine if the board came up with a fine structure. But then we fall to the Florida statutes would say we have to have a committee and there is a process. We can’t even get people to volunteer to be on the board, there’s no way anyone is going to volunteer to be a fining committee!

The association has been acting as the architectural review committee as well and I know that the architectural review committee cannot be a board member or a relative of a board member according to Florida Statutes. But the homeowner sends them to the board and the board reviews and approves because again, no one will step up to be the architectural committee.
AugustinD


Posts:1695


08/30/2021 2:43 PM  
Posted By CarissaM on 08/30/2021 2:34 PM
Yes, we did retain an attorney who is supposed to be specializing in homeowners association’s. I wonder then, why didn’t he ask for the board of directors or a contact on the board of directors so that he could verify we, as the officers, are authorized to conduct business on behalf of the board?
Without a board none of you folks (claiming to be lawful officers of the corporation) have the authority to conduct business.

I think it's likely the attorney communicated with "the President" and just assumed this person was also a director, appointed by the Board to be president and to communicate with the attorney.

If there is no board and not even one person willing to serve as a director and run an election, then receivership is appropriate.

This is a big legal deal.

Under the law, none of you are even officers.

You all are going to do what you want. I am just saying: If it were I, there are too many risks for me to be agreeable to serving except to run an election, where I or hopefully someone else would agree to run for a director's slot. Even just one person willing to serve as a director may be sufficient to appoint officers; lawfully delegate duties to officers; and so on.
CathyA3
(Ohio)

Posts:2475


08/30/2021 2:45 PM  
Well, you guys probably don't have officers either - usually those have to be appointed by directors (unless your bylaws are different from the norm).

What you have is a group of homeowners acting on their own with no legal authority to do so. Even if you were appointed at some point by former directors, I'm not at all sure that you remain in office once your board ceased to function (interesting question that - can't remember it coming up before).

I doubt you have an HOA attorney - who would authorize the HOA to pay one? And many attorneys who limit their practices to community associations won't talk to homeowners at all because of the potential of a conflict of interest popping up at some point. And just who is paying the bills anyway?

Oy. You guys do need to talk to a lawyer like yesterday, but boats are the least of your problems (like do you have any insurance on any common areas, and what happens if somebody gets hurt and sues the HOA?).
AugustinD


Posts:1695


08/30/2021 2:45 PM  
Posted By CarissaM on 08/30/2021 2:40 PM
Can you also expand on why the association cannot issue violations? To my knowledge, we have been able to issue violations because the declarations give the association the power to do that
Per statute, the Declaration, the Bylaws, and the Articles of Incorporation, the powers of the association for matters like this are to be exercised by a board of directors.

Unless the Board of Directors delegates to Officers the power to issue violations, then the officers have no power.
MaxB4


Posts:1395


08/30/2021 2:49 PM  
This topic needs to be transferred to a new topic as variances should be the least of their issues, as they need to figure out if the governing body is even legal.
CarissaM


Posts:0


08/30/2021 3:02 PM  
I definitely have an attorney that specializes in homeowners association’s. We have paid him $1520 to date just for 2021. When we completed his initial forms regarding our association there was no request for directors. They asked for officers.

I’m just wondering if there is, in fact some confusion on my part, with regard to the terminology of what I was elected to be. Is it possible that they have been electing a Board of Directors this entire time and we do not have enough participation to have officers? The articles of incorporation do say that a failure to elect a president, secretary or treasurer shall not affect the existence of the association. Because I had someone mentioned yes it’s just a bunch of homeowners doing the best they can with something after they fired a property management company which was probably a bad idea.

I can’t believe that my variance question has grown into the very existence of the association!
CathyA3
(Ohio)

Posts:2475


08/30/2021 3:03 PM  
Posted By AugustinD on 08/30/2021 2:45 PM
Posted By CarissaM on 08/30/2021 2:40 PM
Can you also expand on why the association cannot issue violations? To my knowledge, we have been able to issue violations because the declarations give the association the power to do that
Per statute, the Declaration, the Bylaws, and the Articles of Incorporation, the powers of the association for matters like this are to be exercised by a board of directors.

Unless the Board of Directors delegates to Officers the power to issue violations, then the officers have no power.



And the lawyer they talked to, assuming it's the HOA's attorney, is probably going to be *very* unhappy if it turns out this group misrepresented themselves (even if unintentionally). They may have compromised his ability to act as the HOA's counsel since he provided information and advice to homeowners who may end up in an adversarial position with the association.

Not. Good.

AugustinD


Posts:1695


08/30/2021 3:12 PM  
CarissaM, are the initials for your HOA by any chance VPD?
AugustinD


Posts:1695


08/30/2021 3:15 PM  
Posted By CarissaM on 08/30/2021 3:02 PM
The articles of incorporation do say that a failure to elect a president, secretary or treasurer shall not affect the existence of the association. Because I had someone mentioned yes it’s just a bunch of homeowners doing the best they can with something after they fired a property management company which was probably a bad idea.

I can’t believe that my variance question has grown into the very existence of the association!
The association certainly exists, as does the corporation. Don't let anyone tell you otherwise.

The problem is the association appears, so far, to not have anyone who has the proper and lawful authority to act on the association's behalf.

Whatever CathyA3 says on this matter I agree with.
CarissaM


Posts:0


08/30/2021 3:18 PM  
We HIRED him. We had no one. We hired him.
CarissaM


Posts:0


08/30/2021 3:25 PM  
It looks like one person acting as an officer has the “D” title. No I’m not a D. I’m just the ST. I know what you mean, I know exactly what you mean.

I can follow the Sunbiz registration and see exactly how this happened. Our BOD was the same for several years, then the prior President and residents came together to fire the PM (too bad they couldn’t vote on those amendments though). So they fired the PM who was also managing the Sunbiz and when she filed, because she didn’t know what she was doing she neglected to add the designation to the annual report.

Now I have an incorrect Sunbiz, we are directors and there are no officers.

I will have the Pres call the attorney and explain this in detail, then see what he says.


AugustinD


Posts:1695


08/30/2021 3:36 PM  
CarissaM, anticipate that the attorney will ask the following questions:

-- When was the last election for directors held? Make sure whoever among you HOA owners is answering understands that the HOA owners elect the directors. The HOA owners do not elect officers.

-- Who was elected to the board at this last election?

-- Did any of the folks elected to be directors at the last election either resign, die or move out of the HOA? Were any of them recalled per a Special Meeting of the members?

-- Can you please have anyone who was elected to be a director at the last election, and who did not resign, die or move out, or be recalled, please call me immediately?

CarissaM


Posts:0


08/30/2021 3:51 PM  
Then our last election for directors was in January and the person who used to manage the Association used the wrong terms. Our board had three directors but they also acted as Officers. Two resigned in 2021 at the annual meeting so we held an election and then elected two current directors who act as officers. The third director resigned in February. He was acting as the Secretary.

The directors elected me to be the secretary/treasurer. I was not voted in.

I guess this is what we are going with for the moment.
Please login to post a reply (click Member Login on the menu).
Page 2 of 2 << < 12



Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement