Florida ROC : Florida Mobile Home & RV Lawyer & Attorney : Scott Gordon : Lutz Bobo Telfair Eastman Gabel & Lee Law Firm : FL Condo & Homeowners Associations

I want to bring two recent items to the attention of my blog readers.   I've touched on one of the items in a past entry and thought the other item was extremely important.

I've covered the issues raised by golf carts in resident-owned communities in an earlier post.   As those of you that attended our most recent ROC seminar presentations know, golf cart owners may be unpleasantly surprised to discover that their automobile insurance does not cover injuries or damages caused by or to their golf carts.   My earlier post dealt with safety issues and stressed that ROC boards and managers should remind the residents in their communities that golf carts must not be treated as toys and must be used with great care.

I was saddened, but not surprised, to hear that a six year old child in the Lakeland area died this week as a result of injuries she suffered in a golf cart accident.  It might not be a bad idea to post one of the news reports about this tragic death on the bulletin board in your community to remind all residents that great care must always be used in operating golf carts.

I have to confess that I've never watched Oprah Winfrey's show.  However, she wrote a short piece that appeared in last Sunday's edition of the New York Times and I highly recommend that this column also be posted on the community bulletin board.   I intend to explore how ROC boards, managers (and their attorneys) are all feeling the stress of having to instantly respond to complaints and concerns of residents in a future entry.   For the time being, however, I suggest that we all consider Ms. Winfrey's message about the dangers of  "multi-tasking"--especially texting and using our cell phones while driving--a well-intentioned warning to concentrate on the most important task at hand when driving--whether that be a golf cart, sports car, or mini-van. 

That task, of course, is to arrive safely at our destination--whether around the corner or on the other side of the country.

As I post this entry, Senate Bill 1196 has been approved by both houses of the Florida Legislature and has been sent to the Governor for his signature.  I'll let you know if and when he signs the bill and what that means for ROCs in future blog entries.

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One of the resident-owned cooperatives we work with recently contacted me with a very interesting question.   This ROC wanted to create a "community garden" on an unused common area and the manager wanted my opinion as to whether the board could authorize this "community garden" or whether a vote of the members would be required.

As many of my blog readers know, the answer to this question turns on whether creating a "community garden" is a "material alteration" of the common areas.  The applicable section of the Florida Statutes for cooperatives states that, unless other procedures are included in the community's governing documents or such action is expressly prohibited in the articles of incorporation or bylaws governing the community, a ROC may not "materially alter" the common areas of the community unless the action is approved by two-thirds of the total voting interests in the community.   The applicable section of the Florida Statutes governing condominiums has similar language but requires (in the absence of any language in the condominium documents)  the approval of 75% of the total voting interests.

So is this community's planned "community garden" a "material alteration"? 

While there is no clear-cut rule determining exactly what is and what isn't a "material alteration," there are a few important factors to consider:

• The common area in question is currently unused
• No structure would be build on this common area
• The nature of the common area would not be substantially changed

Based on these factors, my "gut feeling" is that this "community garden" would not constitute a "material alteration" and the board could authorize this usage without membership approval.

My colleague from our Tallahassee office, Karl Scheuerman, provided me with a copy of a 2003 arbitration decision from Florida's Department of Business and Professional Regulation, Tilney v. Association of the Fountains, Inc., which determined that a condominium association board's landscaping project over a portion of the common elements did not constitute a "material alteration".  The arbitrator reviewed and discussed several prior decisions from Florida's appeals courts and DBPR arbitrators in the process of making his determination.

While the Tilney decision provided me with an additional reason to advise that the "community garden" was not a "material alteration," I suggested to the ROC manager that the best and safest course of action--both legally and politically--might be to obtain membership approval. 

After all, why fight a battle that could have been avoided in the first place--especially if the board knows that a substantial majority of the membership is in favor of the planned improvement--even if it's not a "material alteration"?

I'll be finishing a very busy season of presentations on Tuesday morning, April 20, at the Mid-Florida ROC meeting at Country Club Manor in Eustis.  We've had great attendance and fantastic responses at all of our recent seminars and I want to thank all of our hosts for the hospitality and our attendees for their participation.  

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Board members and managers in resident-owned condominiums and cooperatives may recall that tucked away in Chapters 718 and 719 of the Florida Statutes are several provisions that require associations to "retrofit" their "common areas" with handrails or guardrails and fire sprinkler systems or other "engineered life safety" systems.   The statutes provide that these retrofitting requirements may be waived by the members of associations where the common areas are not in a "high rise building," which is defined as "a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story".

ROC board members should note that even if a community does not have a "high-rise building" the members must still waive the retrofitting requirements.   The voting procedures differ for the waiver of the two different types of retrofitting:

• Florida Statutes Sections 719.1055(5) and 718.112(2)(l) allow for limited proxies, ballots personally cast at a duly called meeting of the members, or a member's written consent to be used in a vote to waive the requirement to retrofit a fire sprinkler system or other engineered life safety system.
• However, according to Florida Statutes Sections 719.1055(6) and 718.1085(1), neither limited nor general proxies can be used for a vote to forego retrofitting for handrails or guardrails.  This vote must be made in person at a duly called membership meeting or by execution of a written consent by that member.

The decisions to waive or forego these retrofitting requirements become effective upon the recording of a certificate attesting to such vote in the county where the ROC is located.  The association also must notify the members of the decision to forego retrofitting after the vote--within 30 days after the vote to waive the sprinkler system retrofitting and within 20 days after the vote to forego the handrail retrofitting.

Since the statutes provide that the local authorities that would have jurisdiction over the community buildings cannot require retrofitting of the common areas until the end of 2014, ROCs still have a few years to plan and schedule the membership meeting where these votes will occur.  

Just something to keep in mind during the "off season".  

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