If you are a condominium or homeowners’ association board member or community association manager, this scenario probably sounds too familiar: The association’s board of directors has identified a provision in the governing documents which would benefit the association to amend. Perhaps amending the provision could have a direct, positive financial effect (for example, removing that unfortunate provision excusing past-due assessment liability of third-party purchasers after mortgage foreclosure). Unfortunately, however, the governing document provision requires 75% approval of the entire membership to amend and the association cannot even attain a quorum at its membership meetings. Accordingly, the board and manager question whether they should even attempt to propose an amendment to the governing documents and incur the associated expenses. Should they just give up?
If the scenario above sounds familiar, there may be some strategies available to generate the support necessary to adopt the amendment, some of which are as follows:
- Informational Town Hall Meetings. One strategy is to invite the membership to one or more informal, informational “town hall” meetings. The purpose of the meeting would be to discuss the possibility of proposing an amendment and the reasons to support it. It may be helpful to have an attorney present at the meeting to help explain the amendment process and reasons to support the amendment. Sometimes such a meeting will help mitigate the spread of misinformation in advance of proposing an important amendment.
- Explanatory Cover Letter. Some associations will present an amendment to the membership by including it in the annual meeting notice package along with a proxy without any prior notice or explanation of the purpose for the amendment. It is difficult to get someone to approve something that he or she does not understand, so springing an amendment on the membership without any prior communication might not produce the desired result. Consider taking the time to provide an explanation and ask for support in a cover letter.
- Campaigning. Do not underestimate the effectiveness of personal communication. Nothing prohibits a board member, committee member, or helpful association member from knocking on neighbors’ doors and asking for support (except for perhaps a restraining order!). Some boards will appoint “Street Captains” to organize a group of helpful members to walk a portion of the neighborhood (their street) and go door-to-door to ask members to sign proxies or written consent forms. Throwing away a piece of mail is easy; saying “no” to a neighbor who is personally asking for your support is not as easy.
- Action by Written Consent. Depending on the issue being submitted to the membership for approval, and depending on any limitations that may be in your association’s governing documents, you may be able to obtain the requisite approval by written consent. Most residential community associations are organized as Florida not-for-profit corporations, which are governed by Chapter 617 of the Florida Statutes. Pursuant to Section 617.0701 of the Florida Statutes, members of the corporation may act by written consent if not prohibited by the governing documents. The benefit of soliciting approval by written consent is that the Association does not have to call a membership meeting and be concerned with adjourning the meeting to a future date if the amendment does not pass at the first meeting. Instead, the association would generally have a 90-day period to obtain written consent forms and follow up with members who did not participate within the first 30 days.
- Suspending Voting Rights of Delinquent Members. Both the Condominium Act and the Homeowners’ Association Act permit the association to suspend a member’s voting rights if he or she is more than 90 days’ delinquent in the payment of “any fee, fine, or other monetary obligation due to the association.” Suspended voting rights are subtracted from the total number of voting interests in the association and reduces the total percentage or number of all voting interests available to take or approve any action. Accordingly, suspending delinquent members’ voting rights at a duly-noticed board meeting might be difference between passage and failure on a close vote.
If your association is considering an amendment and is concerned about obtaining the requisite membership approval, perhaps some of the strategies referenced above could help. For assistance with determining a strategy for obtaining membership approval, navigating the process of obtaining approval by written consent, or suspending members’ voting rights, consider contacting an experienced condominium or homeowners’ association law attorney.