HOA Q&A: How can an outdated declaration of condominium be updated?
Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Q: I am a new member on the board of directors of my condo association. I ran for the board because there are a few issues that I felt the past board was not addressing. One of which is that the declaration needs to be updated as it is from the 1970s and we are stuck with the following out of date requirements. Can you please outline the process for amending the declaration? What majority vote is required to pass an amendment?
A: The first thing you will need to do is review the existing declaration to determine if procedures for amendment are set forth therein. Most declarations contain their own requirements for amendment, including the percentage of ownership required to vote to pass such an amendment. However, if your declaration does not contain any such procedures or requirements, then Section 718.110, Florida Statutes, provides that the declaration can be amended if approved by not less than two-thirds of the units. Your next step would be to draft the proposed amendments and distribute them to the owners along with the notice of a members’ meeting. The notice needs to be given at least 14 days prior to the date of the meeting where the members will vote on the approval of the amendments. Please note that unless your declaration provides otherwise, you will need to obtain the approval of two-thirds of all unit owners, not just the two-thirds of those that attend the meeting and vote. By way of example, if there are 30 units, and only 20 unit owners vote in the meeting (while 10 unit owners do not vote at all) you would need all 20 units that voted to vote in favor of the amendment in order for it to pass. Once passed, Section 718.110(3), Florida Statutes provides that the amendment is effective upon recording of the amendment in the public records of the county where the declaration is recorded.
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Q: I own a condo in Florida as an investment property, but I do not live in the state. I made an official records request to my condominium board, looking for them to provide certain ledgers and other financial reports. The association responded to my request and said that I can go look at the records on a certain day in the office of the property manager. It does not make sense for me to fly all the way there just to pick up these documents, so I asked that they be emailed or mailed to me instead and they said they will not do so. Isn’t the board required to provide me with these records? R.C., Fredericksburg, Virginia
A: The official records of a condominium association in Florida are “open to inspection by any association member or the authorized representative of such member at all reasonable times” pursuant to Section 718.111(12)(c), Florida Statutes. Provided that the documents that you requested are indeed official records of the association, which by your description it sounds like they are, you are entitled to inspect them by statute. However, the statute goes on to provide, “The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying.” The association made the requested records available for you to inspect at a reasonable time and location. They are not required to mail or email such records to you, even if it is an inconvenience to you to get to the location, since the property manager’s office (which is presumably local to where the condominium is located) is a reasonable place for them to make the records available. If you are unable to make it yourself, please note that the above language allows you to appoint an authorized representative to inspect the records on your behalf, so if you know someone locally that would be willing to inspect the records for you, then you can authorize them to do so.
Destiny Goede, Esq., is an Attorney at the Law Firm Goede, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: [email protected]. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
This article originally appeared on Treasure Coast Newspapers: HOA Q&A: How can an outdated declaration of condominium be updated?
