Q: How many times can a board of directors request a vote on an amendment after it has already been voted down?
— L.W. (via e-mail)
A: To my knowledge, there is no limit in the law. Most governing documents for condominiums and homeowners’ associations permit proposed amendments to be initiated by action of the board, or a petition submitted by some specified percentage of the association’s members. As long as the proper action (board vote or petition) precedes the vote on the amendment, I do not think there is any limit.
It is not unusual for amendments to be reconsidered after failure. Sometimes, amendments fail due to low voter turnout or a misunderstanding of the proposed intent or effect of the amendment. Clearly, at some point, if the members are not going to approve an amendment, the association should realize that beating a dead horse never moves it forward.
Q: At the recent annual meeting for my condominium association the owners were presented with a question asking whether the association should waive the requirement to have an audit of the association financial records conducted. The same question has been asked for the past few years. I looked and our bylaws specifically require an audit to be conducted every year. Is my condominium association following the law?
— D.T. (via e-mail)
A: Florida community associations are statutorily obligated to provide owners some type of year-end financial report. There are different types of financial reports which can be prepared: (i) a statement of cash receipts and expenditures, (ii) a compilation, (iii) a review, and (iv) an audit. The type and level of year-end financial report a community association is required to prepare is dependent on the size of the association, the language of the governing documents, and the association’s annual revenue.
The first place to start the analysis is your governing documents. If your condominium association’s governing documents specifically require that an audit be prepared each year, you must comply with this requirement and your association doesn’t have the option to vote to “waive down” to a “lower level” financial report, such as a review or compilation. I recommend you confirm that the yearly obligation to conduct an audit is, in fact, contained in your association’s governing documents. Such a mandatory, yearly requirement can impose a financial burden on an association. Many of my community association clients who had similar requirements contained within their governing documents have sought my assistance to have this requirement “amended out” of the governing documents.
If your governing documents do not mandate an audit be conducted every year, then the type of financial report your association must perform each year will depend on the association’s total annual revenues and number of units. As an example, a condominium association with 50 or more units with annual revenues of $500,000 or more is required to prepare audited financial statements.
Regarding the vote to “waive down” the association’s financial reporting requirement, the law states that the meeting to vote on whether to “waive down” the level of required financial report must occur before the end of the fiscal year and is effective for either the fiscal year in which the vote is taken or the following fiscal year, depending on how the question is structured. For homeowners’ associations, there is no statutory or administrative guidance on point, and presumably no requirement that the vote take place prior to the end of the fiscal year.
Additionally, the Florida Condominium Act states that condominium associations cannot “waive down” year-end financial reporting requirements for more than three consecutive years. For homeowners’ associations, there is no statutory limitation on the number years the owners can “waive down” financial reporting requirements.
— Joe Adams has practiced law in Southwest Florida for 30 years, and spent the past 28 years focusing his entire practice on condos and homeowner associations. His firm represents more than 4,000 associations in Florida, including some 1,000 associations in the Southwest Florida market. He personally serves as counsel to a number of condo associations on Marco Island. Send questions to Joe Adams by e-mail to email@example.com. Past editions may be viewed at floridacondohoalawblog.com.