Q: Our homeowner’s association has restrictive covenants that created two classes of homeowners.
One class is for those homeowners that that received their property directly from the developer and the second class is for all the other homeowners. The developer class has voting rights in the association that are superior to the voting class for the others.
For many years, all owners voted without regard to the classification until about a year ago when a new board of directors rewrote the documents. The new language provides that the non-developer owners can only vote as a block and no longer vote individually. For the change in the documents, the board of directors called a meeting in which they said that if there was no vote against the change they would consider that a vote in favor of the new change.
I have read the Florida Statute on homeowners’ associations and it seems that their position is contrary to the laws in our state. I hired an attorney to come to the annual meeting after reviewing the original documents and the proposed changes, and his opinion was the same as mine. The board disregarded both my opinion and the attorney and went forward anyway.
At this point, since I have no right to vote, I feel as though I shouldn’t have to pay monthly dues. What is your opinion? Am I required to pay dues if I have no vote? If I must pay, what is the least expensive way to go about proclaiming my rights and acting upon them?
I do not want the hassle/expense of suing the association, and am looking to minimize any further legal fees. Can I, as an individual, petition a court for some sort of injunctive relief?**
A: The issue of paying your dues is separate and distinct from the actions of the board of the association. You should probably continue to pay your dues. Even if the actions of the board are illegal, you are still receiving services and benefits from the association, whether you have a vote or not.
The association may have a pool, common areas, parking garage, gate house, security, and many other expenses that are beneficial to you and your monthly dues (or maintenance fees) cover those expenses.
And while you don’t have a right to “vote,” you probably still have a duty to pay these fees. If you’re not looking for a battle, you certainly will find one when you stop making payments and the board slaps you with late fees and other charges. Eventually, the board may have the right to evict you from the home if you fail to pay all fees owed including late fees and other expenses, including, perhaps attorneys fees.
If you want to take up the voting issues cause yourself, you might succeed. Your case is somewhat complicated and you’d have to start by reading the association documents. You’ll need to make sure that your interpretation of the different classes of voting rights is a correct interpretation. While certain property declarations set forth different classes of shares, those differences are usually there to protect the developer while the developer is still building homes or selling homes in an association. Eventually the classification of shares ends and all homeowner’s would have their own voting rights.
Recently, there have been distinctions in the rights of certain timeshare owners, but those distinctions usually don’t result in variations of types of voting rights. Instead, they are differences in the benefits that a homeowner gets if he does or does not buy the timeshare home from the developer (rather than buying a resale from a former owner).
It’s possible that your association’s documents are quite old and have some older language that did purport to create these differences, but usually these variations have been overwritten by newer state laws. You might be right that Florida statutes now make it illegal for your association to create the different classes of voting rights as the board has done.
Differences that might be permitted could include having one homeowner pay into an association for certain benefits while the other lot owners did not. For example, if you bought into a golf community and you purchased a lot from a developer with rights to the golf course and pay a fee associated with those rights, your voting rights might differ from another homeowner in the development who does not have rights to the golf course but still has certain rights to the development.
There are countless other variations to explain different voting rights for different issues. You might need more information as to the exact nature of the voting rights that you originally described in your association documents to determine what those rights are, how those rights are exercised and how those rights can be challenged and changed.
Having said all that, you already received an opinion from an attorney telling you that the method in which they changed the voting rights was not “legal”. Your choice will be to either hire an attorney to make your case to a court to force the board of the association to make the changes in accordance with the association documents and state law or try to take on the association yourself.
If you take on the association yourself, you might find the process rather time consuming and you may end up making enemies of some of the other members in the community that agree with the board. If you don’t go down the litigation route, your final act to make a change is to make sure enough of the owners in the association are on your side and vote the members of the board out of office and put in board members sympathetic with your view on the issues.