Q:Members of our HOA received an email several weeks ago from the board of directors, notifying us that the board would vote to change the association bylaws at a regularly scheduled board meeting to be held less than four days from the date the notice was sent.
At a minimum, I find it poor practice to assume everyone has email access, considering the age of many of the owners.
I do not believe that the board has the power to change the bylaws, because the current bylaws provide that they can only be amended at a members meeting by the affirmative vote of "an absolute majority of the votes entitled to be cast."
I expressed my concerns to the board president who cited the association's articles of incorporation, which provide that the first bylaws of the association may be amended by a majority of the board, "except as otherwise provided by the bylaws or the declaration of covenants."
The issue is whether the board has the unilateral authority to change the bylaws. – G.F., Englewood
A:G.L., I had to edit your question because of length, but, hopefully, I can touch on the major points.
The first issue is the email notice of the board meeting.
In a HOA, the bylaws or amended bylaws may provide for giving notice of meetings of the members, the board and committees by electronic transmission. However, a member must consent in writing to receiving notice by electronic transmission.
Notice of board meetings must be posted in a conspicuous place in the common areas at least 48 hours before a board meeting. If notice is not posted, then each owner must receive written notice at least seven days before the meeting. (HOAs with more than 100 members can also provide broadcast notice if it has a dedicated cable station and if the bylaws so provide.)
In addition, written notice of a board meeting at which amendments to rules regarding the use of units are to be considered must be mailed, delivered or electronically transmitted to the members and be posted at least 14 days before the meeting.
Therefore, if the bylaw amendments addressed the use of the parcels, notice was clearly inadequate. Also, if some owners only got notice by email without consenting to that kind of notice, this was defective.
As for whether the board had the authority to amend the bylaws, it would appear that it did not, based solely on the facts of your question.
The articles of incorporation specifically provide that the board can amend the bylaws unless the bylaws provide otherwise. The bylaws do provide otherwise.
As a rule of document construction, the specific provision will govern over a more general provision. And, in this case, I do not see a conflict between the articles and the bylaws. It is my opinion that the bylaw provision requiring a member vote is controlling.
I also believe that any doubt in this regard should be resolved in favor of allowing the membership to vote on provisions affecting the operation of the association.
Renting out a condo
Q:About 30 years ago, I purchased a condominium unit that I have been renting to tenants. At the time of purchase, there was no restriction limiting the number of times the unit could be rented.
At some point two or three years ago, either the rules and regulations or the condo documents were amended to limit the renting of units. Am I grandfathered to be allowed to continue renting my unit?
– R.L., via email
A:Many people, such as you, purchase units for investment purposes, intending to rent them. Those people rely on the leasing restrictions in place at the time of purchase in deciding whether to buy. It is not uncommon for associations to later amend these restrictions to make them more stringent.
Although it is true that a purchaser buys with the actual or imputed knowledge that the leasing restrictions can be subsequently modified by following the amendment procedures in the condo documents, such an amendment can create a financial hardship for the investors.
The Florida Legislature took notice of this several years ago, and amended Section 718.110, Florida Statutes, to add a new Subsection (13). This provides that if an amendment prohibits owners from renting their units, or alters the duration of the rental term or specifies, or limits the number of times owners are entitled to rent their units during a specified period, the amendment only applies to two categories of owners.
One category is owners who consent to the amendment. The other category is owners who acquire title to their units after the effective date of the amendment.
In your case, if you did not consent to the leasing restriction, it is not binding on you and your leasing rights would be grandfathered. At such time as you sell or otherwise transfer title to the unit, the unit will be subject to the then-current leasing restrictions.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tew@lawbywiseman.com.
