Despite what it might seem from reading our weekly column, not every issue that faces a shared ownership community is factually complex — sometimes readers send us simple questions of “black letter” law. Today we are going to take the opportunity to answer a few of these smaller questions that we have received.
According to the by-laws of our HOA, “Except as may be modified by Board resolution, Robert’s Rules of Order (then-current edition) shall govern the conduct of Association proceedings when not in conflict with Florida law, the Articles of Incorporation, the Declaration or these By-Laws.”
If the board fails to adhere to Roberts Rules of Order, is that a sufficient basis for declaring an action taken, or even an entire meeting, null and void? — Signed, E.A.
It is extremely common for condominium and HOA documents to specify a particular system of parliamentary procedure, and Robert’s Rules is the most frequently used. For those who are unfamiliar, Robert’s Rules is a set of guidelines that may be used to maintain order in any governing body, whether a city government or a corporate board. However, Robert’s Rules is just that — a system of rules by which order may be maintained at board meetings. Its guidelines vary, depending on whether the governing body is small or large, formal or informal. And we can say, from many years of property management, board and legal experience, it is very rare for a board to follow Robert’s Rules to a T. The rules are often complex, with multiple provisions that all interact with one another. Even lawyers are rarely experts in Robert’s Rules. Some communities will appoint a parliamentarian to keep order, but most board do their best to simply use Robert’s Rules to guide meetings and allow the board to make the best decision possible with the fairest amount of input from both owners and board members.
Given all of that, it is highly unlikely that a failure to follow Robert’s Rules would lead to the invalidation of any board action.
Our by-laws read, in part, “The officers of the Association shall be President, Vice President, Secretary and Treasurer, and, except during the Class ‘B’ Control Period, shall be elected from among the members of the Board. The Board may appoint such other officers, including one or more Assistant Secretaries and one or more Assistant Treasurers, as it shall deem desirable, such officers to have the authority and to perform the duties prescribed from time to time by the Board. Any two (2) or more offices may be held by the same person, except the offices of President and Secretary.”
Some HOA members have argued that the by-laws prohibit the same person from holding the offices of secretary and treasurer. The Board has determined that the provision of the by-laws cited above means that the president cannot be the secretary, and the secretary cannot be the president, but that each of them can hold other offices, e.g. the secretary can also be the treasurer. Please weigh in with your opinion on this matter. — Signed, E.A.
Your board is correct. Your provision is not ideally worded, but it means the president and secretary must be different people, but that does not prevent either of them from holding another office.
You recently published an article about rule enforcement. You stated in the article that there was a five-year statute of limitations as it applies to enforcing the rules in a HOA’s controlling documents. If the controlling documents state that the principle of waiver does not apply to the association, which legal principle would apply to the association? — Signed, G.H.
While generally a declaration, being a contract, is the guiding document that controls a community association and its rules, there are a number of provisions that are unlikely to survive judicial scrutiny. For example, many documents contain provisions that attempt to disclaim developer liability for construction defects, or mandate arbitration for such defects. Such provisions are not typically enforced. Similarly, both waiver and selective enforcement are legal defenses to enforcement of covenants — it would be very unlikely for a court to uphold such a provision.