How are Homeowners Associations in Florida Governed in General?
Florida associations are governed by a board of directors (or just “board”) initially appointed by the declarant (usually the developer) and then elected by homeowners in accordance with the association’s declaration of covenants (“declaration”). The board consists of members elected by a plurality of other members, except that elections are not required if there are fewer or an equal number of qualified candidates compared to positions open. Fla. Stat. §720.306(9). Members who are delinquent on the payment of assessments or other fees owed to the association, or who have been convicted of a felony, are not eligible to serve on the board. Id.
The board, in turn, appoints officers to carry out the board’s duties and powers. Fla. Stat. §720.303(2). Officers and directors have a fiduciary relationship toward members and must therefore act reasonably within the association’s and members’ best interests and avoid self-dealing or conflicts of interest, on penalty of removal. Fla. Stat. §§720.303(1), 720.3033. Within 90 days of appointment, a board member is required to provide written certification that he or she has reviewed the HOA’s governing documents, will work to uphold the association’s policies to the best of his or her ability, and will honor the fiduciary duty owed to the members. Fla. Stat. §720.3033(1)(a).
Duties and powers of an HOA’s board, granted by the HAA and the community’s declaration, include enforcement of covenants, assessment and collection of member fees, maintenance of commons areas, and acting on behalf of the association in legal matters. The Homeowners’ Association Act (HAA) recognizes that Florida associations can exercise all powers granted by the association’s governing documents unless expressly restricted by statute. Fla. Stat. §720.303(1).
An association’s corporate structure is governed by its articles of incorporation, a legal document prepared when the association organizes as a corporation. Eligibility criteria and duration of terms for officers and board-members are usually set forth in the declaration, bylaws, or articles of incorporation. Most communities provide for annual terms. See generally, Fla. Stat. 720.303(2). Community members can obtain a free online copy of the association’s articles of incorporation and information about the association’s corporate status by visiting the Florida Corporation Commission and conducting a search under the association’s name here.
Developer control of a community’s HOA tapers off according to the percentage of community lots remaining under the developer’s control. After 90% of lots have been sold, the developer turns over effective control to the elected board, and non-developer members are entitled to elect at least a majority of the board. Fla. Stat. §720.307. The developer is entitled to elect at least one board member as long as it still controls at least five percent of lots. Id.
An association’s declaration is recorded with the county land records of the county in which the association is located and sets forth the association’s restrictions and covenants, the duties and powers of the board and officers, the manner in which association voting and elections occur, the process for calculating and collecting assessments, and any restrictions on the powers of the board or association. Fla. Stat. §720.303. Lot owners and any occupants of homes within the association are legally bound to comply with the declaration. Fla. Stat. §720.305. In the event of non-compliance, the association, acting through the board, can bring an action against the non-compliant member to recover amounts owed to the association or to compel compliance by court order. Fla. Stat. §720.3085. Individual lot owners may also bring compliance actions against other noncompliant owners.
Association members have a right to vote on certain association matters, including election of board-members and adoption or amendment of covenants. Voting occurs at member meetings, which must be held at least once per year. Fla. Stat. §720.306(2). Members may vote in-person or by proxy. Fla. Stat. §720.306(8). Proxies must be made in writing, signed by the member, and state the specific meeting for which the proxy is intended. Fla. Stat. §720.306(8)(a). For a vote to occur, a quorum (at least thirty percent of possible voters unless community bylaws allow a lower percentage) must be present. Fla. Stat. §720.306(1)(a).