My husband and I were not allowed to vote on a special assessment for a non-emergency sea wall. I believe this is in violation of Homeowner's Covenant and Florida Statutes 720.303. In 2011, the majority of our five-member board, who represent 110 homeowners, voted to start a special assessment for a non-emergency sea wall reserve account. The estimated cost for this project is north of $260,000. We were told that the wall was needed to stop and prevent soil erosion along a canal. There was no soil testing or proof of any erosion prior to their decision to start the assessment.This assessment was not voted on by the association members. Our covenant requires a vote by the association members and a 65% approval for a special assessment. When asked why there wasn't an association vote, the president's response was that the association homeowners give up their right to vote when they elect the board. The board is elected to make all decisions. I also believe that the board violated Florida Statute 720.303 subsection BUDGET, paragraph D. In part---If reserve accounts are not initially provided by the developer, the membership of the association may elect to do so upon the affirmative approval of a majority of the total voting interest of the association.

The same “board member” gave different reasons for not following the statute which would require a vote.First we were told that the special assessment was put into the budget before the statute was enacted. However, a representative from the management company said that the statute was in place when this special assessment was created. I was later advised that the statute in question was to be repealed by the legislature.

My request for the documentation for these responses has not been granted. I became a spokesperson regarding the decision to build this wall, asking for an association vote and soil studies to determine or evaluate any type of erosion. We were not given a vote. I was told, by this same board member, that if it was put up for a vote it would not pass. In November of 2013, a soil study was completed by an environmental consultant. This study was unable to determine the amount of erosion, if any, but discussed the unstable, sandy soil surrounding our property. The report outlined three options to correct the problem. The first was to bring the grounds back to their original slope and condition. Homeowners would have to clean out their gutters and downspouts thus allowing rainwater to flow to the road, and not the canal, as they were when the development was constructed. The estimated cost for this correction was $50,000.

The second opinion was to build walls only where an engineer believes they are needed. There was no cost estimated. The sea wall, sometimes referred to as retaining wall in some budgets, along the canal that affects about 1/4th of our owners, was the third and most costly option. The estimated cost was north of $260,000.00. This wall would be constructed behind about 1/4th of the total residents and where four of the five board members would personally benefit. About $90,000.00 has been collected since this assessment was adopted in 2011. The current plan is to build the sea wall, option #3 in the report submitted by ECT. The project would be paid for by an additional one-time assessment of $1,500 to $2,000.00 per homeowner.What can I do to require the board to allow a vote of the association members regarding the sea wall project before they assess members and start construction?

“There are numerous issues in your question,” says Leonard Wilder, an attorney with the law firm of Bakalar & Associates, P.A. in Coral Springs. “In an HOA, the right to specially assess the owners often times may require a vote of the members, something not typically seen in condominiums. If a membership vote is required, the bylaws should outline the procedures that need to be followed. Though the president’s statement about voting rights maybe is inartful, his comment is not far from the truth. In many instances, a board can make a decision without the vote of the members depending upon what your covenants or chapter 720 say about the particular issue. In general, and with some exceptions, a board is given significant powers to maintain and operate the community without the need to obtain a vote of the members before making a decision.

“In your question you also mention reserves. To be clear, reserves are not special assessments. Chapter 720.303(6), discusses reserves and outlines when an association may properly budget and collect same. The applicability of said statute and how it compares to the requirements of your community’s governing documents is beyond the scope of this answer, but in general, if like most HOA’s, reserves are not required by your documents, or not yet established, I would argue that in order to establish same the procedures set forth in s.720.303(6) would need to be followed. The fact the law may or may not be repealed is irrelevant as I write this.

“Going to your sea wall question: it is not clear to me if the board is collecting reserves for this project, specially assessing or both. The right for members to vote on this issue may depend on how the project is being funded and the purpose of the sea wall.     

“There are many other little issues in your question which cannot adequately be addressed or discussed. Based on what you told me, it appears that you should sit down with an attorney who practices community association law to discuss all these issues in full. If counsel concurs that the board is not following proper protocols, he or she will discuss your options.”