Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q:  My condominium board just introduced plans to renovate the clubhouse. The plans include new paint colors in some rooms, installation of wallpaper in others, and furniture changes. I think a vote of the members is necessary before the board can begin the renovation. Am I correct? D.M., Naples

A:  You are probably correct.  I say probably because there may be a material alteration provision in your Declaration of Condominium that would allow the board to take these steps if it is in line with the provisions of the material alteration provision.  In order to determine this, we should first determine whether the proposed changes are material alterations.  The term material alteration is generally defined as a palpable or perceptive change in the use, function, or appearance of the common elements or association property.  By your listing of the proposed changes, it looks like they would qualify as a material alteration.  If so, Section 718.113, Florida Statutes, states that at least 75 percent of the total voting interests must approve a material alteration unless the condominium documents provide for a different threshold.

Most condominium documents do provide a different threshold.  Your condominium documents likely provide a lower threshold for approval of material alterations.  Some condominium documents tie in a material alteration vote with the expense proposed or a percentage of the association’s budget.  For example, a provision may only require a material alteration vote if the proposed material alteration exceeds a certain monetary amount or a percentage of the association’s budget.  Otherwise, the board may make the decision to implement the material alteration without a membership vote.

I recommend reviewing your condominium documents to determine whether a different threshold is stated.  If so, that threshold applies.  If there is no different threshold, then Section 718.113, Florida Statutes apply.  I also recommend that the board consult with its legal counsel on this matter.

Q:  My homeowners association just turned over from developer control.  We have the governing documents (Declaration of Covenants, Articles of Incorporation, and the Bylaws) and the Architectural Standards.  There are some provisions in the Architectural Standards that are in conflict with the use restriction provisions of the Declaration of Covenants.  Which document supersedes? J.B., Port Charlotte

A:  The provisions in the Declaration of Covenants supersede any conflicting provisions in your Architectural Standards.  That being said, I recommend that the association review its Architectural Standards and remove any conflicting provisions.  Further, this review will also be a good opportunity to adopt new Architectural Standards for the community.

Please note that adoption, revision, or removal of Architectural Standards would be considered a rule change affecting the owners’ use rights over their lots.  This means that the association will need to post and mail the notice of board meeting at least 14 days prior to the date of the meeting.

Q:  I live in a homeowner’s association.  We have a restriction requiring all garbage and recycle bins to be stored in the garage when not on pick-up days.  We have an owner that refuses to comply despite our several attempts to amicably resolve the situation.  What are the board’s options here? B.H., Boynton Beach

A:  The board of directors has several options.  It can pursue fining, suspension of common area use rights, pre-suit mediation, and an injunction action to comply with the association’s restrictions.  If the association has not already done so, I recommend that a warning letter be sent to the owner that he/she is required to comply with the restrictions of the community.  It would be very helpful to cite the section requiring that the garbage and recycle bins be stored in the garage.  The warning letter should have a date certain for compliance and a statement that the association will be forced to act should the owner refuse to comply.  If the violation has occurred more than once, then it is helpful for the association to have photographic evidence of the different occurrences.

As mentioned above, the association has several options.  I have found that the simplest avenue for compliance is usually fining and/or suspension of common area use rights.  There are specific guidelines that must be followed to properly impose a fine or suspension of common area use rights, including holding a fine or suspension hearing before a hearing committee composed of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.  As such, I recommend that the association speak to its legal counsel regarding the procedure to ensure that whatever fine is levied can also be collectible against the owner.

S. Kyla Thomson, Esq., is a partner of the law firm Goede, DeBoest & Cross.  Visit www.gadclaw.com to ask questions about your issues for future columns or send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

This article originally appeared on Naples Daily News: Condo Q & A