Can the board increase the number of directors?

Editor’s note: Attorneys at Goede, Adamczyk, 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: Our board of directors has five (5) directors and we want to increase the size of the board to seven (7) directors. We have an active membership and these additional directors would bring a lot of knowledge and experience. Can the board increase the size to seven?

K.A., Bonita Springs

A: The answer to this question completely depends on the language of your specific governing documents, and most importantly your bylaws.

If your bylaws simply provide that the board shall consist of five directors, you will need to amend the bylaws to change the actual language of the bylaws and your individual bylaws will have a specific voting requirement to amend the bylaws.

If the bylaws provide that the board shall consist of an odd number in the board’s discretion, then the board can use its discretion at a board meeting to vote to increase the size of the board and fill the vacancies in the board’s discretion unless the bylaws provide a specific mechanism to fill vacancies.

If the bylaws provide that the size of the board shall be an odd number as determined by the members, then you may not need to amend the bylaws, but you would require a membership vote to authorize the increase in the size of directors.

It is great that you have enough participation to increase the size of the board, but I would recommend you have your bylaws reviewed by your legal counsel to determine the appropriate means to increase the size of the board. It may simply be a vote of the board of directors, but the answer is unique to your community.

Q: We live in a community where the developer only provided a few options for doors. We want to change the color of our front door so that it pops with a vibrant red color. My neighbor told me that doors must be neutral colors and that the homeowners association (HOA) would fine me if I painted it red. Can they do this?

T.H., Naples

A: Most new HOAs contain a covenant in the governing documents that all exterior improvements must be approved by the board or by an architectural review committee. If your governing documents contain this provision, then you would be required to request approval from the association before you change or paint the front door.

Next, the question is whether your HOA has specific guidelines with respect to door colors or paint colors. The statutes were amended about 10 years ago to require HOAs to keep specific guidelines with respect to size, color, materials or location governing exterior improvements.

For example, if the association wants to regulate exterior paint colors, the guidelines need to have specific provisions to permit certain colors and/or exclude certain colors. If there are no objective architectural standards, the HOA is not permitted to exercise subjective approvals or denials depending on whether the architectural control committee likes red doors.

Assuming the documents prohibit your intended paint color, it would be a violation to paint your door red. The HOA could potentially levy fines or take other enforcement actions to compel compliance with the architectural standards.

Q: My neighbor keeps three cars in the driveway every night and their garage is full of junk. When we bought our home, we never saw cars parked in the driveway and it is an eyesore. Can the association force them to clean out their garage and park the cars in the garage?

H.D., Naples

A: In order to adequately answer the question, I would need to review the specific covenants because the answer is almost completely dependent on the language of your governing documents and rules adopted by the board.

If the governing documents are silent on this issue, the answer would generally be that you can lawfully park vehicles on your property inside your garage or in your driveway. There is no rule which generally requires that vehicles be parked in a garage unless it is self-imposed in your specific HOA documents.

It is very common for documents to require commercial vehicles, for example, to be parked overnight in garages and not in the driveways or streets. It is also common for governing documents to require owners to park as many cars in the garage as there are garage spaces before the driveway may be used for overnight parking. Unless such a covenant exists in your governing documents, there would be no ability to force an owner to clear out the garage for vehicles.

Q: The landscaping in front of my condominium unit is terrible compared to other buildings. The association says I am not allowed to replace the dead vegetation, but the association appears to be in no rush to replace the dead vegetation. Can I do this and charge the association?

S.K., Marco Island

A: Likely, no. The Declaration of Condominium will include the boundary of unit — in other words, the documents will dictate where your unit ends, and where the common elements begin. The Declaration of Condominium will almost always provide that the condominium association is responsible for the maintenance, repair and replacement of the common elements, which generally includes the landscaping.

I am aware of some condominiums where the unit owners have limited common element gardens or whereby the documents permit individual landscaping in certain areas around the unit, but for the most part the obligation to replace that dead vegetation lies with the association.

Next, it is possible there is a legitimate purpose for not replacing the vegetation. For example, the problem may rest with the irrigation or with the landscape vendor, in which case the irrigation may need to be fixed before planting new vegetation, or the landscape vendor may be soon replacing the vegetation due to its improper maintenance. It is also possible there may be a discrepancy over whether the vegetation, in fact, requires replacement. I have routinely seen conflicting opinions from landscape experts which disagree over whether certain vegetation requires replacement.

If you are correct and the board is ignoring the problem, the remedy would not be to fix the plants and seek reimbursement. In fact, altering the common elements without the board’s approval may itself be a violation of the covenants. I would recommend you consult a licensed Florida attorney to advise you on your options, which may include arbitration and/or a lawsuit for breach of duty.

Attorney John C. Goede is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross. Visit the website at www.gadclaw.com or ask questions about your issues for future columns by sending an inquiry to: info@gadclaw.com. Goede, Adamczyk, DeBoest & Cross is a full-service law firm with a focus on condominium and homeowner association law, real estate law, litigation, estate planning and business law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida. 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, Adamczyk, 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.