BYLAWS? NO HURDLE FOR THE DIVISION!
THEY MAKE THEIR OWN RULES!
Opinion By Jan Bergemann
Published January 25, 2008
When you see some of the statements and rulings of the Division of Florida Land Sales, Condominiums and Mobile Homes, you have to wonder why we still have a legislature. The DIVISION runs its own show -- and interprets the statutes as it sees fit -- totally ignoring legislative intent.
The DIVISION'S latest coup d’état: Declaring all bylaws void that limit board membership to terms or requirements of resignation after 3 board meetings. These are their references:
Cloister Beach Towers Assoc., Inc. (B. Ross) (# 2007-003-592)
(Term limits set by Bylaws)
Maison Grande Condominium Assoc., Inc. ( # 2006-051-291)
(Multiple unit-owners of a single unit serving simultaneously)
La Costa Beach Club Resort Condominium Association, Inc. (Case No. 2003-08-3347)
(Board member delinquent in payments!)
The DIVISION's general explanation: The Legislature's only restriction for eligibility for board membership: "A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership."
Personally, I think the DIVISION is far off base, as it is in many other cases. How about the all-important sentence: "If there is no provision in the bylaws for terms of the members of the board, the terms of all members of the board shall expire upon the election of their successors at the annual meeting." This sentence in the Florida Statutes clearly recognizes the rights of bylaws to create term limits -- or other similar restrictions.
We owners are being told that we should have read the bylaws before buying into the association -- and if we didn't like the provisions, we shouldn't have bought the unit. Shouldn't a board member be required to read the bylaws before taking office as a member of the board -- and shouldn't he refuse to take office if he doesn't like a provision that "requires an automatic resignation after three consecutive missed meetings"?
If the board member or some of his colleagues later on don't like this provision for obvious reasons, he/she should be held to the same standard as owners: "You knew what you agreed upon!"
Declaratory Statement (WILLIAM
A. GRUBBS --
is another sad example of ill-advised interpretation of the Condo Act. If
condo-owners had already the common sense to protect themselves against
this kind of possible abuse of power by writing their bylaws accordingly,
the DBPR shouldn’t take that right away with some very flimsy arguments.
the scenario of a condo with a three-director board with husband and wife
serving as directors. Not only can they make every decision they ever want
– director 3 is only a puppet – but each time they are talking in bed
about association business they are violating
It really all started with the ruling of Karl Scheuerman in the La Costa Beach Club Resort Condominium Association, Inc. case in 2003. It dealt with board members removing a fellow board member from the board for "delinquent dues." I can understand this ruling, especially since it may be tricky to determine what is “delinquent” and particularly if the bylaws are vague. And we have seen boards and management companies "creating" delinquencies on purpose in order to make owners ineligible to vote.
But from "delinquent dues" to bylaw provisions like failure to attend three consecutive board meetings or bylaws with clearly defined term limits, it's in my opinion too far a stretch -- and makes no sense to me!
We know in the meanwhile for sure what we only suspected before: The serious influence of the specialized law firms on the top executives of the DIVISION. Attorneys seem to have a hot-line to DIVISION executives and influence their decisions. A public record request revealed that a DIVISION arbitrator quit his job, because he was strong-armed by his superior to change his ruling after the superior spoke at length with the attorney on record about the case. Another case regarding ex-parte conversation is still pending. And despite public record requests, the DIVISION is still trying to hide the reason for Chief Arbitrator Karl Scheuerman's "involuntary separation" on October 12, 2006. You don't just fire a long-time employee of a government agency without a really good reason!
Don't forget that attorneys and managers like to keep "their" board members in office. Those specific board members guarantee the income for the attorneys and managers and make sure that their contracts are renewed. That's why so many attorneys are inclined to represent the interests of the board members instead of the interests of the whole association.
FS 718 clearly recognizes that Bylaws may designate terms, making me conclude that the Bylaws may control board member's eligibility other than a felony conviction
Why do associations adopt bylaws if those bylaws can be conveniently ignored if so desired -- with the help of the DIVISION?
This is not supposed to be a legal opinion. The author is not an attorney. It's some FOOD FOR THOUGHT -- to show that the system works against the owners. It seems that the top executives of the DIVISION -- in place for many years -- have their own agenda, definitely not favoring the owners' interest. And it seems that the people in charge -- Governor's Office and DBPR Secretary -- are not minding the store. Otherwise, these violations of legislative intent are hard to explain!