Question: The board voted that the new president need not pay monthly maintenance fees. Apparently this has been going on for the past two years. I believe this is illegal. How do we deal with this?
Answer: Nowhere do Florida statutes allow a resident to avoid payment of fees. Several places do refer to paying one's full share. FS 718.112 says that "unless otherwise provided in the bylaws, the officers shall serve without compensation." Review your documents to see if they allow board members to receive compensation. If you allow the president to be relieved from paying his fee, then you are compensating him, and this must be reported to the IRS and possibly the state for tax purposes. The board should contact your attorney and your CPA for guidance.
Board should resign over spending limit
Question: Our associations recently voted to require owner approval of any nonbudgeted expenditure over $500. They did not amend the documents to reflect this new policy. Now we need to remove a tree at a cost of more than $500. The board has sent owners a memo seeking their consent, approval to be indicated by unit number only, not by signature. Is a vote valid without a signature?
Answer: The board of directors has the responsibility to maintain the common areas. Since members now have taken away their power to spend money to meet necessary expenses, it may be time for the board to resign. The board was elected to manage the affairs of the association. The board needs the power to contract for needed work and pay for it. If members are unhappy with the way board members spend association funds, vote them out. Don't handicap the board by requiring that every motion be approved by the members.
If the restriction on spending funds that exceed $500 was correct (and as you can see, I do not believe it is), then the way to vote is to call a membership meeting for every question. A memo is not the way to cast a vote.
Apparently the motion to limit spending was never presented to an attorney for review. I feel that the motion to limit spending is unenforceable because it conflicts with state statutes that require the board to maintain the association. The only way to test the change is in court.
Board presidents must vote
Question: Does the board president have to vote on motions? We vote by roll call. If he abstains, is that considered a concurring vote?
Answer: Florida statutes override Robert's Rules and require all directors to vote. FS 718.111 says that a director at a meeting must vote or it will be assumed that the director assented to the action.
There are a couple of exceptions to this rule: when there is a conflict of interest and when the president is not elected as a director. A conflict of interest occurs when the director may or could benefit from the action. For example, suppose the board is voting to move its funds to a new bank and a director is a vice president at that bank.
While it is highly unlikely that a non-director would be elected president, it is possible if the bylaws permit it. I know of one case where a unit owner (the husband of a director) was elected president because he was experienced and willing and the bylaws did not require that officers be elected directors. He ran the meetings but did not vote because he was not elected as a director.
- Richard White is a licensed community associations manager. Write to him c/o Community Living, St. Petersburg Times, P.O. Box 1121, St. Petersburg, FL 33731; or 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 toll-free at 1-800-226-9101 with questions or requests for materials. Access the Bureau of Condominiums Web site at www.state.fl.us/dbpr/lsc/index.shtml 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.
