Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Our HOA has an amendment that was recorded in 1998 that purports to give the power to make further amendments to the board of directors, without the input of the owners. The problem is that this 1998 amendment was never voted on by our owners, and the declaration would have required membership approval in order to be amended this way in the first place.
When you look at the amendment itself, there is no mention of a vote by the owners. This issue recently came up before an administrative judge in the context of the revitalization of our covenants. One of our directors testified that a membership vote was held in 1998, and I testified otherwise, but the judge believed the director and ruled that the amendment was valid.
We want to remove this illegal amendment. At least 20% of us signed a petition to remove the board but the board refuses to add the question to the agenda for our upcoming membership meeting. We have tried to fight this, but the association’s attorney always outsmarts us. What can we do? Signed, R.C.
Dear R.C.,
Your question raises a couple of different and unrelated issues. Let’s deal with the amendment first.
In litigation, there is a statute of limitations which says that you have to bring lawsuits within a certain period of time of the original dispute. When challenging amendments to a declaration that period is five years. So, if someone wanted to challenge the legitimacy of that 1998 amendment, they probably needed to do so by 2003. You are now way past that deadline, and I think it would be very difficult to challenge the legitimacy of the amendment now. Your experience with the administrative law judge is a good example of why the law has statutes of limitations in the first place—today, 25 years later, it’s nearly impossible to accurately determine how the amendment was passed, and whether it was valid. I think that route is going to be a dead end.
However, your declaration now says that it can be amended by the board alone. That’s good, because if you can get a board in place that agrees with your position on the amendment, you can return the declaration to the way it was and after that point the only way to amend it again would be by membership vote.
There are two principal ways to recall a board—either by a small percentage (10%) of the membership petitioning the board to call a membership meeting to vote on the recall; or instead by serving the board with a recall by written petition, where a majority of the owners submit written forms recalling the board members, all at once. It sounds as if you tried the first method, and I have no idea if you did that properly, and if the board was right to ignore your demand. But I can tell you generally that a recall by membership vote at a meeting is rarely successful. The far more consistent way to recall a board is to collect and submit properly executed written petitions. You’ll need a majority of all homes to agree to the recall, and there is a specific form provided by the Division of Condominiums to be used for this purpose. That is the best way to achieve your goals.
I will warn you, however, that just because you and a sizeable number of your neighbors are angry about this issue does not mean that you have the majority support you need for a recall. I have seen many situations where very motivated owners assume that most of their neighbors must agree with them, and they simply don’t.
Another potential pitfall is that it’s very easy to make technical mistakes that will invalidate your recall attempt. If you make the attempt too close to an election, or fill out the forms improperly, or have the wrong people sign the forms, it’s going to fail.
You say in your letter that the association’s attorney consistently outsmarts you, and this is going to continue to happen simply because law is complicated and it’s not reasonable to assume that a person who is not an expert in the law relating to HOAs would be able to navigate it better than a lawyer who practices in the area every day. I strongly recommend that you and your like-minded neighbors collect funds to hire a lawyer to help you navigate the recall.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Residents’ petition to remove condo board is ignored. Now what?
