HOAleader.com - Tip of the Week - November 13, 2015
Published: Fri, 11/13/15
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Board Member Booted. Bad Omen for Board?
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In this week’s tip, we discuss whether a board member’s inability to serve means the board’s actions during that invalid tenure are now vulnerable to attack.
Florida law requires HOA board members to be certified to be eligible to serve on their board. This board member wasn’t. What happens to the board’s actions?
Our reader has stumped our expert. “In my opinion, the answer isn’t clear,” says Christopher J. Shields, a partner at Pavese Law Firm in Ft. Myers, Fla., who’s represented associations for decades. “Florida statutes provide that within 90 days of being appointed or elected, directors must sign a certification saying they’ve read and will enforce the association’s legal documents, or they can certify they’ve completed an approved course. A director who doesn’t comply shall be suspended.”
“However, the statute doesn’t say that board members who fail to comply are removed from the board,” adds Shields. “It says they’re suspended, and the board is entitled to fill their seat until the person becomes certified. Typically, what should or could happen if directors are suspended is that within the next hour or day, they sign the certification. As a practical matter, I don’t think there’s going to be a big issue on this front.
“But let’s assume there’s a board of five members, and three have failed to sign the certification through errors of omission,” explains Shields. “They’re no longer entitled to serve, but they haven’t been suspended, and the board has let out a contract for landscaping. When it comes to outside parties like the landscaper, the board can’t use the fact that the contract was approved by a board not legally constituted to get out of the contract. A contractor would be able to sue to enforce the contract by saying, ‘You signed and presented you had the authority to enter into it.’ In that case, I think the board’s action is still binding, and I don’t think the association would be able to avoid its obligations.
“But if the board were voting on an internal issue during that time—say there was a 3-2 vote on adopting a policy to ban pets—the answer is less certain,” says Shields. “But even then, I think if it can, the newly constituted board should ratify the prior decision.”
This issue is important beyond Florida. Many states have rules prohibiting certain people from serving on boards or disqualifying those already serving. Read more in our new article: http://www.hoaleader.com/members/1283.cfm
Best regards,
Matt Humphrey
President
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Recent articles posted at HOAleader.com:
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HOA Board Member Disqualified: What Happens to Actions He Participated In?
An HOAleader.com reader asks, "Our president of our HOA in Florida was not certified [as required by state law] for two years of his being on the board. According to our governing documents, if a director hasn't become certified within 90 days of his being elected, he's suspended from the board until he gets certified. Does that mean all prior actions with his involvement aren't legally binding until he gets certified? Has this issue ever been challenged in court?" Here are answers.
Click here to read full article: http://www.hoaleader.com/members/HOA-Board-Member-Disqualified-What-Happens-Actions-He-Participated-In.cfm
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HOA Developer to Board Control: 5 Things to Do
Every association has at least one big transition, and that's from developer control to owner control. It's a crucial time when boards need to quickly get on top of the association's business.
"There are certain things to check on when transitioning from a developer- to a resident-controlled entity," says Gregory S. Cagle, a partner at Savrick Schumann Johnson McGarr Kaminski & Shirley in Austin, Texas, and author of Texas Homeowners Association Law. "When the developer controls all aspects of the association, the owners are typically in the dark. And when the association is handed over to the owners, there are a lot of things they have to do."
Click here to read full article: http://www.hoaleader.com/members/HOA-Developer-Board-Control-5-Things-Do.cfm
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What You Should Know About Bias Claim Against This HOA
In this week's tip, we offer up a real-life example of an HOA getting the message that it's dangerous to not enforce rules fairly and consistently. The risk? Claims of racial bias.
On Sept. 17, 2015, the New York human rights agency revealed that its investigation supported Linda Abraham's 2014 claim that she was discriminated against by Patio Homes--the Kiamesha Shores Property Owners Association on the basis of her race, according to the Middleton, N.Y., Recordonline.
Click here to read full article: http://www.hoaleader.com/public/What-You-Should-Know-About-Bias-Claim-Against-This-HOA.cfm
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New York State Permits Racial Bias Claim Against HOA
Here's why it's critical to enforce rules fairly and consistently: The New York State Division of Human Rights has determined there's probable cause for a black homeowner's claim that her HOA's inconsistent enforcement of its rules was the result of racial bias.
Here we explain the agency's findings and offer insights to help you avoid similar accusations.
Click here to read full article: http://www.hoaleader.com/members/New-York-State-Permits-Racial-Bias-Claim-Against-HOA.cfm
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HOA Owners Can Give Proxies. Can Board Members?
An HOAleader.com reader reports that a dispute over director proxies has raged at his HOA, requiring the board to seek advice from counsel.
Here we discuss whether it's OK for board members to provide proxies to fellow board members and under what circumstances.
Click here to read full article: http://www.hoaleader.com/members/HOA-Owners-Can-Give-Proxies-Can-Board-Members.cfm
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