STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES IN RE: PETITION FOR BINDING ARBITRATION - HOA ST. ANDREWS OF BOYNTON BEACH CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No. 2007-03-9081 THE SPRINGS AT BOYNTON BEACH COMMUNITY ASSOCIATION, INC., Respondent. / SUMMARY FINAL ORDER On June 22, 2007, St. Andrews of Boynton Beach Condominium Association, Inc. (St. Andrews) filed a petition for mandatory binding election dispute arbitration naming The Springs at Boynton Beach Community Association, Inc. (The Springs) as the Respondent. St. Andrews alleges that The Springs, the master association, has failed to provide notice of master association elections to the members of St. Andrews, thereby denying them participation in the elections. The Springs filed its answer to the petition on August 8, 2007. On October 10 and 12, 2007, St. Andrews and The Springs, respectively, filed motions for summary disposition. A case management conference was held in this matter on November 9, 2007, during which the undersigned determined that this matter should be held in abeyance. Therefore, by order dated November 14, 2007, this matter was held in abeyance in order to permit The Springs to hold its annual election of its board of directors with the following conditions: 1
1. The election shall be held on January 3, 2008. 2. Members of St. Andrews are deemed members of The Springs and shall be permitted to vote in the election in accordance with the governing documents and the following conditions. 3. St. Andrew s registration requirements shall be the same for all members. 4. The Springs shall require the same proof of ownership for all members. 5. Likewise, The Springs shall require the same form of personal identification for all its members. 6. The Springs shall not object to any proxy on the basis of authenticity of the owner s signature which is signed by the owner and is notarized and includes proof of ownership of property within the community or where such proof has been previously provided. 7. Any owner who attends the election in person shall be permitted to vote upon presentation of personal identification and proof of ownership of property within the community. If proof of ownership has been previously provided the owner need only present personal identification. 8. St. Andrews of Boynton Beach Condominium Association, Inc. shall provide The Springs with a roster of St. Andrews members, including their addresses. 9. The Springs shall provide St. Andrews members notice of the election at the addresses on the roster provided by St. Andrews. 10. The Springs shall provide St. Andrews a copy of the proxy form on or before November 19, 2007. 2
On December 20, 2007, The Springs filed a notice with the undersigned that the Circuit Court had issued an order contradicting the above order. 1 Therefore, it appeared the election could not proceed forward in accordance with the above requirements. On December 26, 2007, St. Andrews filed a Motion to Appoint Interim Board of Administration. On December 27, 2007, a case management conference was held during which the undersigned informed St. Andrews that he lacks the authority to appoint an interim board. The parties were directed to file a copy of the circuit court order and after reviewing it the undersigned would determine whether he could rule upon this dispute. On February 8, 2008, St. Andrews filed a Second Motion for Summary Disposition with of a copy of the circuit court order. This summary final order is entered accordingly. Findings of Fact 1. The Springs at Boynton Beach Community Association, Inc., is the legal entity responsible for the maintenance and operation of The Springs at Boynton Beach community. 2. St. Andrews at Boynton Beach Condominium Association, Inc. is a condominium Association located at The Springs of Boynton Beach community. 3. The Springs was established in December of 1997. At that time the lot presently occupied by St. Andrews consisted of rental units. In December 2005 the rental units were converted into 264 condominium units. 4. St. Andrews was turned over from developer control in August 2006. 1 The dispute before the Circuit Court of the 15 th Judicial Circuit involved whether the members of St. Andrews should be individually assessed fees related to the operation of The Springs or should St. Andrews be assessed such fees. Case No.502007CA007700XXXXMBAF. 3
5. The Springs has posted notice of annual elections at the entrances to the community. However, The Springs has never provided the individual owners of the St. Andrews notice of the election. 6. In May 2007, The Springs undertook an effort to determine ownership of the individual condominiums at St. Andrews. Eventually, The Springs assessed the unit owners individually. This resulted in the above referenced circuit court case. 7. Article III of the Declaration of Covenants and Restrictions for The Springs governs membership and voting rights in The Springs. Section 2 of the article provides in pertinent part as follows: Class A. Class A Members shall be all those Owners as defined in Section 1 with the exception of the Developer (as long as the Class B membership shall exist, and thereafter, the Developer shall be a Class Member to the extent it would otherwise qualify). Class A Members shall be entitled to one (1) vote for each Lot in which they hold the interests required for membership by Section 1. When more than person holds such interest or interests in any Lot, all such persons shall be Members, but the single vote for such Lot shall be exercised as they among themselves determine but, subject only to the following subsection, in no event shall more than one (1) vote be cast with respect to any such lot. Class B. The Class B Member(s) shall be the Owner, from time to time, of the Neighborhood(s) containing Rental Units. The Class B member shall be entitled to one-half (1/2) vote for each Rental Unit owned; provided, however, that in the event that Rental Units are converted to the condominium form of ownership, then the Owner who purchases a condominium unit from the Class B Member shall automatically be deemed a Class A Member and the number of Class B votes reduced accordingly. 8. Section 10 of the Spring s by-laws provides: Roster of Members: Each Owner shall file with the Association a copy of the deed or other document showing his ownership. The Association shall maintain such information. The Association may rely upon the accuracy of such information for all purposes until notified in writing of changes therein as provided above. Only Members of record on the date notice of any meeting requiring their vote is given shall be entitled to notice of and to vote at such meeting, unless prior to such meeting other 4
Members shall produce adequate evidence, as provided above, of their interest and shall waive in writing notice of such meeting. Conclusions of Law The undersigned has jurisdiction over the parties and dispute in this matter pursuant to sections 720.306(9) and 720.311, Florida Statutes. The Springs initially argued that it did not provide the membership of St. Andrews personal notice of elections and other membership votes because the St. Andrews owners had failed to register with The Springs and, therefore, in accordance with section 10 of its by-laws, it was not required to provide notice to the individual owners. However, The Springs, as of May 2007, was aware of the identity of the owners as it individually assessed the owners. Therefore, as to any future election, The Springs would be required to provide notice to these individuals. This dispute appeared to be resolved as result of the November 9, 2007, case management conference and subsequent order holding the matter in abeyance in order to permit The Springs to hold its annual election with notice to and participation by the membership of St. Andrews. However, The Springs concluded that the Circuit Court order regarding the manner in which The Springs was permitted to assess St. Andrews contradicted the undersigned s order. Therefore, the election was not held in accordance with undersigned s order. The Circuit Court Order addresses the manner in which The Springs may assess St. Andrews for maintenance costs and the type of costs that may be assessed. The order does not address the voting rights of the St. Andrews owners. Section 2 of Article III of the Declaration of Covenants and Restrictions for The Springs clearly provides that the owners of St. Andrews are to be deemed Class A Members for voting purposes. There is no requirement that voting rights be proportional or otherwise related to the 5
amount or manner in which a member is assessed maintenance costs. 2 Therefore, the undersigned finds that his prior order regarding the election is not contradicted by or otherwise in conflict with the Circuit Court order. Based upon the foregoing it is ORDERED: Within sixty (60) days of the date this order, The Springs shall conduct an election of its board of directors. The members of St. Andrews shall be permitted to participate in the election as Class A Members. Notice of the election shall be provided individually to the Members of St. Andrews based upon ownership information obtained by The Springs or subsequently provided to it. St. Andrews may provide its membership roster to The Springs which The Springs may rely upon unless informed of a change of ownership by an individual owner. DONE AND ORDERED this 17 th day of March 2008, at Tallahassee, Leon County, Florida. James W. Earl, Arbitrator Division of Florida Land Sales, Condominiums, & Mobile Homes Dept. of Business & Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1030 2 It is not unusual for association governing documents to base an owner s share of the common expenses upon the square footage of the unit or parcel while each owner receives equal voting rights. 6
Certificate of Service I hereby certify that a true and correct copy of the foregoing summary final order has been sent by U.S. Mail to the following persons on this 17 th day of March, 2008: David C. Arnold, Esq. Association Law Group P.O. Box 415848 Miami Beach, Florida 33141 David A. Friedman, Esq. One Financial Plaza Suite 1100 Fort Lauderdale, Florida 33394 James W. Earl, Arbitrator 7