My community association board has just discovered that one of our board members is not eligible to be on our board because she does not own property in the area described in the bylaws as being part of the association. She did once live in the area, but she sold her home and moved over 100 miles away. She did claim that she could keep her position because she owned rental property in the area. We just learned that her rental property is not in our association area, either. She has been ineligible for more than a year now. She has resigned under fire. Do her votes on board issues for the time she was ineligible count as legitimate votes? Signed, B.B.
The issue that you describe, which frankly is not all that uncommon, raises a legal principle known as a “de facto” officer or director. A de facto officer or director of a corporation is one who is in possession of and exercising the powers of a director or officer under the claim of an election or appointment, even though that person may not be appropriately qualified, and may be removed through a proper corporate proceeding. As a matter of public policy, the law holds that actions taken by de facto board members and officers are binding as they relate to third parties and the stockholders or members of the corporation — in the corporate world, for example, that would include decisions such as passing an assessment on a stock subscription (not that different, by analogy, than the passing of a special assessment in a shared ownership community).
So, even though the board member was no longer eligible (and we are simply taking your assertion about this at face value, as it is the documents that specify who is eligible to serve on a board), the vast majority of actions taken by that board member until removed from the board would be valid and enforceable.
As many of us age we are finding it increasing difficult to safely navigate the stairs to and from our second-floor condos that we purchased when we were younger. Can a condo board prohibit me from installing a wheelchair lift or stair chair if I have a note from my doctor stating this is a medical necessity? Is such a note even necessary? Signed, D.A.
What you are describing is also referred to as “aging in place,” and it’s an extremely common situation in communities throughout Florida. While we talk a lot in this column about service animals and the Fair Housing Amendments Act, it turns out that this same law governs your own situation.
The FHAA prohibits a housing provider (such as a community association) from discriminating “in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.” It goes on to state that discrimination includes “a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.” This law covers all sorts of modifications — ramps, flooring, elevators, and probably wheelchair lifts and stair chairs. The key question will concern whether the requested modification is “reasonable,” and that’s ultimately a factual question. For example, we know of one case where a woman was prohibited from building an entry ramp that, as planned, would cover half of a community pool. However, we see owner-installed elevators all the time, and it seems highly unlikely that your wheelchair lift would not be found to be a “reasonable” modification.
Note that you do have to pay for the improvement, it must be properly permitted and approved by the city, and you also do have to demonstrate that you are qualified to request the right to modify — that is, that you are “disabled,” and that the modification is required to allow you full use of the premises. For that, a doctor’s note should suffice.