Legal Question in Real Estate Law in Florida
I believe our condo board may have illegally amended our bylaws.
The Florida Condo Act (F.S. 718.112 Bylaws. - (h) Amendment of bylaws) states: "If the bylaws fail to provide a method of amendment, the bylaws may be amended if the amendment is approved by the owners of not less than two-thirds of the voting interests.�
Our condo Bylaws - Article VI - Amendment to the Bylaws states: "Unless otherwise provided in the Condominium Act, the Declaration, or the Articles, these Bylaws may be amended by resolution adopted by a majority of the board of directors or by a majority of the voting members of the Association."
Our current board�s viewpoint is: Since our bylaws provides an amendment procedure, the requirement for a 2/3rds approval vote of the owners mentioned in the Condo Act is not applicable.
I disagree. It seems to me our bylaws� sequence of procedure starts first with checking if a method of amendment is contained in the Condo Act (which it does; 2/3rds approval of membership); if none given, then one sees if any method is noted in our documents, in descending order. Then, and only then, if no such guidance, could the board consider amendment on its own.
I believe our Association is ignoring the first part of our bylaws amendment procedure: "Unless otherwise provided in the Condominium Act ..." and simply jumping to the last section stating that the board may itself amend our bylaws.
Do I have a valid point? If so, what, if any, are my resources as a unit owner?
2 Answers from Attorneys
You raise a good question. Not the best drafted language in your Bylaws. However, I think I would tend to side with your Board. The Condo Act is designed to give the Association the ability to draft their way out of most of the default provisions of the Act. It's really designed as a fallback if the Association documents are silent. Because you have a specific provision regarding amendments, I would tend to agree that the intent of the Association was to operate under your own Article IV, not the statutory provision. But I do see where your argument has some merit.
The statute supersedes the bylaws of your association. Unfortunately, if you want to challenge the board's amendment of the bylaws, then you probably have to file a lawsuit, which can get quite expensive. If you prevail in the lawsuit, then you may be entitled to recover the attorney's fees that you've spent.
We have been involved in many disputes in homeowners' associations, and would be happy to speak wtih you about the situation. We offer a free initial consultation.
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