St. Petersburg Times
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They are short a board member

By RICHARD WHITE
© St. Petersburg Times
published June 15, 2002

Question: The covenants of our association call for a minimum of three members on the board of directors. Since January there have been only two board members because of an apparent lack of interest on the part of the owners. Can a board operate with only two members when the covenants specifically call for a minimum of three? Are the actions of the two boardmembers legal?

Answer: The quorum of your association is two, so decisions made by these members would be considered proper. However, any member could petition the courts that the association is not operating in accordance with its documents. If that member requested that the association be turned over to a trustee, a court might decide in favor of that request, which is a very expensive way to manage an association. I strongly suggest the association and members take a more active part in operating the association, or face the financial consequences.

Selective enforcement

Question: One member of our board has had a running dispute for years with his next-door neighbor. He managed to get on the board by appointment. He continues his pursuit of the neighbor with the support of other board members. I consider this selective enforcement, as many other homeowners commit violations and nothing is said about them.

Answer: If the rules are being enforced in only one or a few cases, they can be determined to be nonenforceable. You know the old saying: "Use it or lose it." If you enforce your rules improperly, you also run the risk of losing the power to enforce them at all. Your board member is using the power of the board to solve a personal problem.

At election time, I seldom hear unit owners ask candidates, "Why are you running for the board?" In most cases the answer would be, "For personal reasons." Directors should be elected who have the best interests of the entire association in mind.

Appointee shouldn't advise

Question: Nine months ago our condo hired a property management company. A licensed Community Associations Manager was assigned to sit in at every board meeting. When this licensed manager resigned, the property manager assigned his secretary to attend meetings and advise the board. I believe that only a licensed CAM should be advising and sitting with the board at official board meetings.

Answer: FS 468, the Community Association Management statute, says that a person who performs clerical or ministerial functions and is under the direct supervision and control of a licensed manager is not required to be licensed.

The person must be licensed if he or she controls or disburses funds, prepares budgets or other financial documents, assists in the noticing or conduct of community meetings, and coordinates the maintenance of the community.

If this person is doing nothing more than transcribing instructions from the board for management duties or reading reports from the manager, I would not have a problem if the individual were unlicensed. But you say the person is offering advice to the board. This opens up new questions as to violations of FS 468.

The state reports that fewer than 8,000 persons qualify as CAM licensees in Florida. Since there are more than 40,000 condominium, homeowner and co-op associations in Florida, there is a shortage of managers. There are even fewer experienced managers, because it is a stressfuljob and the turnover rate is high. Your board should be asked its understandings of management's duties. Is this a temporary situation or is it a permanent arrangement?

- Write to Richard White, c/o Community Living, St. Petersburg Times, P.O. Box 1121, St. Petersburg, FL 33731. Sorry, he can't take phone calls or provide personal replies by mail, but you can e-mail him at CAMquestions@att.net. Please include your name and city. Questions should concern association operations; legal opinions cannot be offered. For specific legal advice, contact an association attorney.

Readers may call the state Division of Condominiums Bureau of Customer Service at toll-free 1-800-226-9101 with questions or requests for materials. Or write to Bureau of Customer Service, 1940 N Monroe St., Northwood Centre, Tallahassee, FL 32399-1032. Please note that this office provides no information about homeowners' associations. The state has no bureau or department covering those associations.

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