Rob Samouce: Condo association must keep documents up to date

The following scenario is an example of what can happen if a condominium association does not update old governing documents. You are an association board of directors running a condominium that has been around for a few years. The developer has left and you have never had many problems with the unit owners. In fact, you cannot recall the last time the association has called an attorney about association business because nothing really controversial has come up. You heard somewhere that the Condominium Act (Chapter 718, Florida Statutes) has substantially changed over the years, but you continue to follow the procedures set forth in your developer-drafted documents because you have always done it that way. You follow your old document provisions when holding your annual elections, determining your annual budget and notifying members of meetings. Whether you realize it or not, some of the methods you have been following according to the condominium documents in conducting the association's business are improper as they no longer conform to changes that have occurred to provisions of Chapter 718, Florida Statutes since your documents were drafted.

Alas, all good things must come to an end. Guess who just moved into Unit 6 (or was it Unit 9)? A professional avocational dissident. An avocational dissident is a person who gets personnel satisfaction out of attacking the establishment of the association. The person seeks to embarrass, disrupt or overthrow the current board of directors. This new dissident soon discovers all of the egregious violations of the Condominium Act that the association board of directors has effectuated over the years by following its outdated documents.

The dissident files a formal complaint with The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominium and Mobile Homes, Bureau of Condominiums. The division agents from the state come down from Tallahassee, asking questions, requesting records and making life miserable for all the volunteer directors.

Up until this irritating dissident arrived, nobody on the board of directors realized they were doing anything wrong. The directors, who are generally all good upstanding law abiding citizens, now feel like wrongfully accused and convicted felony criminals. Well, suffice it to say, in this area of the law, just like most other areas, "ignorance of the law is no excuse." The association will pay the price for its ignorance.

You may think the above hypothetical could never happen at your condominium. However, many of the circumstances discussed above are not uncommon and many times are the norm, rather than the exception, when an avocational dissident shows its ugly head. So, how do you protect yourself from this legal accident waiting to happen? There are basically two ways to do it.

First, you can call an attorney who concentrates their practice in this area every time the association wants to do anything so that you can determine whether you can legally follow your ambiguous document provisions, or must follow a provision in the Florida Statutes, or must follow both the documents provisions and the statutes. As you can see, this option has practical problems and can become costly in a short period of time.

The second way to protect yourself keeps you from having to memorize your attorney's phone number, keeps your legal fees down and provides clear document language to follow in carrying out your duties. This protection is accomplished by having a competent attorney draft a completely new set of condominium documents tailored to your association's particular needs and fully in compliance with today's law. This rewrite process, if performed correctly, should not be rushed. It typically takes anywhere from three to nine months from the attorney's submission of the first draft to the association to obtaining membership approval of the new documents by a vote at a special members' meeting or your annual members' meeting.

Once the new documents are approved by the members and recorded in the county public records, you will typically find a lot of nice results. The members will better comprehend how a condominium association is run as well as better understand their specific rights and obligations as unit owners. The directors will understand the specific powers and duties of the board and will find it relatively easy to implement the up to date operational procedures to run the organization in a legal fashion.

Maybe best of all, that avocational dissident (or potential avocational dissident) will no longer have technical procedural violations by the association of provisions of Chapter 718, Florida Statutes to utilize as part of the dissident's arsenal. The dissident's ability to cause havoc will greatly diminish. The division in Tallahassee will be overjoyed for not having to investigate and prosecute another group of good meaning folks. Your directors and officers insurance carrier will be pleased and you as a director can put that "personal liability cloud" behind you. Your association can get on with making your corner of the world one of the sunniest places in the sunshine state.

Also, many real estate agents concur that new condominium documents improve the value and the salability of a condominium because the new documents are evidence that the condominium association is well run and has its act together.

Update your documents and you will not be another one of the associations that will have to be told, "We told you so," when its directors, who didn't follow the advice herein, come knocking on the door one day asking for assistance in getting them out of that fine mess they inadvertently got themselves into.

Rob Samouce, a principal in the Naples law firm of Samouce, Murrell, & Gal, P.A. concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

© 2003 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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