Richard White: Games and toys cause stir at association

Q. Our HOA is attempting to update our CC&Rs (documents). One section in part reads, no basketball backboards and any other fixed games and play structures shall be erected. The committee is contemplating removing the word fixed. My thought is a person’s home and yard is his castle and the homeowner is entitled to enjoy it. I think we can disallow fixed games and play structures, but we can not disallow portable games and play structures. I believe we could limit the hours that the portable games or play structures be used, such as 9 a.m. to dusk. Can we also dictate to the homeowner that all portable games or play structures be removed from the yard if not in use or by dusk? R.C. — Clermont

A. Apparently, the board has experienced problems with toys and games in the front yards. When you buy in an association, your home is not your castle and I do not think you would want your neighbor to think his home is above the rules, either. Your home must comply with the association’s deed restrictions as well as your neighbor’s. If you want to make changes to the rules, then you need to work with your board and neighbors, not against them. I cannot provide a legal answer as to the removal of the word fixed but I am sure that there is a reason. You should find out from the board what the problem is and why they feel the need to change the rules.

Q. Is there any ruling regarding when minutes can be posted on a public board for the members to read? Must they be read and approved by the board before they can go up? We understand that the state of Florida says that they can be posted before reading and approved by the board of directors. So what is the sense of having the minutes approved and read? I am confused about the whole thing. Could you please explain this to me? A.P. — St. Petersburg

A. Immediately after the meeting or within a few hours, minutes should be completed in a draft and considered not approved. They can be posted on your bulletin board and marked not approved. At the next meeting, the board should make any amendments or changes and then approve them as the official record of the past meeting. Minutes are the official business record and once the minutes are approved, they need to be placed in a book and retained as part of the official records. Minutes are often expanded inaccurately to include a transcript of the meeting. Minutes only need to record the business conducted and record the abbreviated information of the business discussed. I recommend that the agenda establish the outline to produce the minutes. Only brief remarks are required for each agenda item. Any motions and how each director voted is required but not the discussion.

Q. I have lived in my condominium for 11 years. Recently, the president decided to make the buildings non-smoking. No vote was taken and no meeting was held to decide this issue. He removed all ashtrays and has put up no-smoking signs on catwalks, stairs, lobbies and elevators. Can the president do this without a vote by the owners? Besides people who do smoke, what about service men or women who are hired by owners for repairs or aides or maids? R.G. — Sunrise

A. You would need to review the Florida Indoor Air-Tobacco Smoke Act, FS 386. The act does restrict smoking from certain common and public areas. I am sure that there was a problem or a complaint presented to the board. You would need to find out about the reason for the change by sending a letter to the board and ask why the change was made. In most cases, restricting smoking in common areas was proper. Smokers are finding places where they can smoke are reduced. Smoking has been proven to reduce the lifetime of smokers and those who are exposed to the smoke. Most vendors limit their smoking because they understand the no-smoking areas in other public buildings.

Q. Our co-op documents mention nothing about board polls in between board meetings held monthly. It is common practice for our board to put out many non-emergency type polls that are signed off by a majority of directors at our office. Many of these polls involve expenditures for items/projects not in our budget. Our board uses funds from our operational account. One of our board members, who disagrees with this practice, tried to get the board to approve a poll guideline, which stated, in part, that only emergency items/projects could be voted upon by polls but the board voted it down. I believe this borders on unethical and illegal practice. I ask for your opinion. R.M. — Clearwater

A. FS 719.106 says that meetings of the board at which a quorum is present shall be considered a board meeting and members of the association shall be present. While the statute does say that directors may render a written opinion, it also says that it will not be counted as a vote for or against a motion. In other words, a proxy cannot be used to vote at a board meeting. It further says that directors must be present or available by speakerphone to be counted as present and able to vote. If your directors are taking simply action by casting a vote for an item and the matter is not discussed and approved at a board meeting, it can be considered improper and unenforceable. I strongly suggest that the board seek legal guidance in the operations of such voting. The same answer would be true for condominiums and HOAs. Boards must legally meet to approve business actions. Private meetings or sign-off on a ledger is not a correct procedure. Business must be discussed and approved at legal open board meetings.

Q. I have just been elected to the position of president of an adult condominium. We have one owner who continues to ask the owners if they are selling their property. She and her sons own three units. She is telling them that if she owns a certain percentage she will have control of the board and votes. As voting is done by the board of directors. I am not sure what she can do if she buys many of these units. What are my responses? S.V. — Bradenton

A. I would not worry about her. The situation of her controlling the board could easily be determined by her campaigning with the owners and asking for their votes. Yes, she can buy the units but if she is smart, she does not need to buy the units and spend the money. When I have an aggressive owner, I try to give them an assignment or get them on a committee. Maybe you can offer her some committee job or a situation to help with an upcoming bid. In other words, keep her busy and direct her energy on some other task. As for her buying units or asking owner if they plan to sell, there is nothing illegal in her actions.

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Richard White is a licensed community association manager in Florida. Questions should be mailed to him at 6039 Cypress Gardens Blvd. # 201, Winter Haven, Fl. 33884-4415; e-mail CAMquestion@cfl.rr.com. To be considered, questions and comments should include the author’s name and city. Questions should be about association operations, not legal matters.

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