Q. We have a resident who is storing a car that they do not use in our parking lot. It has been sitting there for three months and he refuses to get rid of it. Is there any recourse for us? Can we tow it?
A. This is not a simple yes or no answer. To tow, you must comply with FS 715. Other questions come to mind involving your parking limitations. What do your documents say about parking and is the vehicle a hazard? Sometimes non-operating vehicles could be a culprit. Does the vehicle have flat tires or maybe dripping fluids? Before you tow the vehicle, you should have the association attorney render guidance. Contact your county code enforcement or other agencies to find out if the vehicle violates any county codes. Maybe they will issue a removal order. Maybe it is time for the board to establish an approved parking policy to prevent this action in the future.
Q. We recently received a resignation from one of our directors. We have three board members on property and one board member that is away. Are the three that are on property enough to appoint a new member or must the other person vote? It appears to be a general question to me, but I have someone saying otherwise.
A. The key to this answer is quorum. First, check your documents to determine the number of directors needed for a quorum. Normally it is 51 percent or more and in your situation three directors. Just because one of the directors is out of town is not a reason to delay appointing a new director to fill the vacancy. If you are able to contact the absent director, have him/her phone during the meeting and use a speaker phone. This will allow the absent director to be recorded in the minutes as present and their vote recorded. It is not a critical operation but should not be delayed. For further information, read the requirement to fill a vacancy in FS 617. A majority of directors can fill a vacant director’s position.
Q. Could you explain the difference between designated and non-designated reserve funds? My HOA has both in the budget and financial report but I cannot find anything in the statutes or our documents. Every time there is a cash shortfall, funds are taken from the non-designated reserves without any approval of the members
A. Reserve accounts are usually named for a specific account or expense, a line item that is being collected. Condominiums are required to have three designated line items: Roofing, Paving, and Painting, along with any other component that has a value of $10,000 or higher. Funds collected for those designated line items must be used for only those expenses unless the members vote to transfer funds to other expenses. HOA boards should valuate the common areas that will need to be replaced in the future. Since HOAs are not hard-wired to establish reserve accounts, it is good business to calculate the line items that should be reserved. Another name for a non-designated account could be contingency funds or maybe non-committed funds. The key difference is that designated funds can only be used for the line item specified without members’ approval. Non-designated is a line item where the board has control of funds and can spend on any expense. I do not recommend the use of non-designated because the budget should be calculated in a way to provide for future expense. I do not object when a board wants that type of line item because it is a business decision by the board. Note the difference between not recommending and not objecting. Quite frankly, such uncommitted funds do provide a safety net.
Q. I live in a gated community. There is a difference of opinion between the residents and the board. Our bylaws do not address parking on the street. I contend that, even if it is not in our bylaws, the board can stop parking in the street. They claim that such a rule would require a change to our bylaws. I say it is a safety issue and the board can issue a mandate as a safety issue. Can you provide us with the answer if the board has the power to enforce this problem and tow the vehicles parked overnight?
Port Saint Lucie
A. Normally such a restriction would not be in your bylaws. Your documents are made up of three basic components: bylaws, articles and HOA covenants. While the bylaws define the business activity of the board, you would refer to the covenants as they cover the deed restrictions and rules. The second problem is that you need to determine who owns the streets. There are two choices: the city/county as public roads or the association as private roads. If the roads are public roads, without any parking restrictions listed in the covenants, the board has limited powers to enforce the parking restrictions you desire. If the roads are private and does not restrict parking in the rules and regulations, such a change would be required of the covenants and voted by the members. One thing you should consider, sometimes the city/county safety department may have a say in the problem as such on the street parking can limit their use of the streets for emergency equipment. But again, the covenants must be amended. I urge such an amendment be approved by an attorney.
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.