Rembaum's Association Roundup
Your association’s board has worked for six months to amend and restate the association’s governing documents, including the declaration, articles of incorporation, bylaws, and even the rules and regulations. The board has met with the association’s lawyer on several occasions, reviewed and provided comments on multiple drafts, and even arranged for multiple meetings with the membership to solicit comments and generate enthusiasm. There are two methods of obtaining the votes. The first is to notice a meeting of the members and use proxies for those who cannot attend. The other is to use, the often neglected, but still effective, written consent in lieu of a meeting process.
The time is finally come – the notice package to be sent to the members is in the mail. A week goes by, and very few proxies are returned. Worse still, on the night of the membership meeting, where it is hoped that the amended and restated governing documents will be approved, only several owners personally attend. Needless to say, not only are there an insufficient number of votes, but there isn’t even a quorum. What is the board to do?
All is not lost, and there is still plenty of time to solicit the necessary member votes so long as the meeting for which the proxies were intended is not concluded. Once the membership meeting is concluded, any and all proxies die an immediate death! But, if the membership meeting is continued to a “time, date, and place certain” then, all of the proxies continue to live for 90 days from the date of the meeting for which they were initially intended.
If a quorum is attained, but not the number of necessary votes, then, any member in attendance can make a motion to suspend the meeting to a time, date, and place certain, so long as the meeting is resumed within 90 days of the date of the initial meeting. Then, the motion should be seconded. A vote of those in attendance, in person or by proxy, should follow such that the majority cast their vote in favor of the continuance. If neither a quorum is attained, nor the number of necessary votes, then the one item of business that can occur, even without a quorum, is a motion to continue the meeting to a “time, date, and place certain.” Again, the motion should be seconded and a vote of those in attendance, in person or by proxy, obtained.
This “continuance” process can be used as many times as necessary, so long as 90 days from the date of the initial meeting have not expired. Once the 91st day is reached, then all of the proxies are as good as dead. Because the meeting is continued, there is no need to re-notice the meeting each time it is reconvened. However, minutes should be taken so that there is an accurate record.
When describing the continued meeting in the minutes, the word “adjourned” could be interpreted to mean that the initial meeting concluded or it could be interpreted to mean that the meeting was continued, therefore it is advisable to not use the word “adjourned” in the minutes to reflect that the meeting was continued. If the meeting is continued, then use the word “continued.” This will avoid any confusion whatsoever. For example, the minutes might include, “Upon motion and second, a majority the members in attendance, in person and by proxy, votes to continue this membership meeting on February 28th, 7:00 P.M. in the community clubhouse.”
Remember, too, that a “general proxy” allows the proxy holder to vote as they so choose, while a “limited proxy” directs the proxy holder to vote as the giver of the proxy instructs.
Utilization of the written consent in lieu of a meeting process will fully avoid the need to have the membership meeting but will still require that the necessary votes are obtained within 90 days. The written consent in lieu of a meeting process is described in Chapter 617 of the Florida Statutes, more commonly known as the “Florida Not For Profit Corporation Act,” and not Chapter 720, Florida Statutes, more commonly known as the “Homeowners’ Association Act.”
Unless otherwise provided in the articles of incorporation, an action required or permitted by the Florida Not For Profit Corporation Act to be taken at a meeting of members may be taken without a meeting, without prior notice, and without a vote if the action is taken by the members having at least the minimum number of votes necessary to authorize the action.
To be effective, the action must be evidenced by one or more written consents describing the action taken, dated, and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the association.
Written consent to take the action referred to in the consent is not effective unless the consent is signed by members having the requisite number of votes necessary to authorize the action within 90 days after the date of the earliest dated consent. Importantly, within 30 days after obtaining authorization by written consent, notice must be given to those members who are entitled to vote on the action but who have not consented in writing. The notice must fairly summarize the material features of the authorized action. Remember, too, that once the necessary written consents are obtained, there should be official recognition of such approval by the board.
Both the proxies and written consents constitute official records of the association and therefore should be stored with the official records of the association.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
