Richard White: Speakerphone can be used by absent board member

Q. A board member cannot make the meeting, but they have asked that another board member vote for them. I advised that this cannot be done. The only way possible is to have a speakerphone and have the missing member on the line when an item comes up to vote on. However, if they know of a particular project that is going to be voted on, can a limited proxy be used by the missing board member? J.M. — Apopka

A. No. Proxies are not allowed and cannot be used for board meetings. The director must be present or on a speakerphone. The concept of the speakerphone means that the director is on a system for those attending to hear the absent director and for the absent director to hear everyone else. It assumes that the director is available for roll call and all other matters on the agenda. If you know that a director is going to be out of town, then overnight or e-mail him/her the board package. This will allow the director to be on the same page as the other directors. I once had an emergency that required a board meeting. Unfortunately, all nine board members were out of town. I made contact with the director and sent them the board package by overnight mail. I set up the room for the members to hear the directors on the speakerphone. The board table was in front with the speakerphone and me. The conference call was made and all nine directors answered roll call and then we followed the same agenda format. The emergency matter was discussed and voted. The meeting was about 30 minutes long but we resolved the emergency matter and not one director was in the room.

Q. Our building has not been enforcing the rules outlined in the condominium documents since I have been an owner and, from what I understand, in the few years prior to that. We would like to start enforcing those rules. What is the legally correct method for informing owners of this change? M.B. — Coral Gables

A. An official notice sent to all owners is the first step that the board will begin to reinstate the rules published in the documents. Discuss the situation at the board meetings. I would make a detailed inspection of all violations. Recognize that some of the violations may not be enforceable and you may need to grandfather these conditions. I would seek guidance from an attorney to help recover the enforceability of the rules. It is possible to begin to enforce the rules after they have been neglected.

Q. A family that lived in our HOA with a retarded child wanted to fence their entire property, which is against our rules. Our president said no, and the state attorney sued on behalf of the parents under the Americans with Disabilities Act. It was a foregone conclusion that we would fail. Nobody can override state and federal laws. Not only did we lose, but also our legal expenses reached $25,000 of which $15,000 was paid to the state attorney. Our insurance did not cover most of the legal costs because it was an ADA violation and the burden of paying was on the owners. Is this legal and do we have any further recourse? The president sold his house and moved shortly after his disaster. We will pay for this mistake with increased insurance fees and our resident attorney fees. L.B. — Inverness

A. Mark it off as a learning experience. The Americans with Disability Act (ADA) is very strong. When an owner requests an accommodation for a disability, the board needs to have an open mind rather than automatically saying no. It would have been best to pass the information to the association’s attorney for an answer. Most attorneys recognize that the federal and state attorneys have a very strong legal standing when it comes to the ADA. Sorry that the president moved. Now the association must pay for his mistake.

Q. What action can a homeowners association take, in addition to letters demanding payment, against a homeowner who is seriously delinquent in his association’s assessments? Can they force a foreclosure? Our association seems loathe taking any real action against this homeowner. F.C. — Tampa

A. You do your association no good by letting members become delinquent in the payment of their fair share of the expenses. I am sure that your documents have strong procedures to force collections. In almost all associations, the documents allow the lien and foreclosure action to collect the late fees. My suggestion is that the board contact an attorney to file liens and then begin foreclosure action. It is my belief that a board that fails to use the strongest method to force delinquent accounts to pay in the shortest time is negligent in their duties. If your board fails to fulfill their duty, vote them out at the next annual meeting. Elect new directors who will take a strong collection policy.

Q. I would like to ask if my husband, who is 55 years old, and myself, 51, could buy into an adult community if we have a 14-year-old daughter. Are we now excluded from owning a home in these communities because we had a child late in life? J.K. — Delray Beach

A. Sorry, but you are going to have to wait for four years. While you qualify because your husband is 55 years of age, your child does not. She must be 18 before you can live in an adult community. The Housing for Older Persons Act says that a child of at least 18 years of age can reside in an adult community if one person resides in the home that is 55 years of age or older. The reference is the 1995 Housing for Older Persons Act. You can buy the home but you will not be able to live in the home until your daughter is 18 or older.

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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 To be considered, questions and comments should include the author’s name and city. Questions should be about association operations, not legal matters.

© 2006 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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