New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Handicap Access to Board Meetings and Conflict of Interest

Dear Poliakoffs,

I reside in a community governed by a homeowner’s association.  The board of directors conducts its meetings at a location that is not accessible to handicapped people.  I have requested, in writing and in person, that they change their meeting place, without success.  I would appreciate direction on how to proceed.  Signed, L.M.

Dear L.M.,

If your question was whether meetings of government entities need to be conducted at a location that affords access to a handicapped person, that answer would be yes.  The problem here is that most courts have held that the conduct of community associations does not rise to the level of “state action”, thereby precluding the necessity of an association having to comply with the laws that govern municipal meetings and actions.  Community associations are private organizations governed by private contracts (and by statute).

We’re frankly not sure where to draw the line in the case of shared ownership communities.  We have had visually impaired unit owners request ear phones for meetings, and hearing-impaired unit owners request a sign-language translator.  Some foreign-speaking unit owners have even demanded that the association provide interpreters.  This can be difficult, if not impossible, to do given the diversity of unit owners from many parts of the world.  However, a number of older properties do not have handicap-accessible common areas, and the law hasn’t generally forced them to adapt to the new codes and regulations.

That said, there is one aspect of federal law that might afford you some relief.  The Fair Housing Act does provide that a handicapped person, at his or her expense, is entitled to make modifications to the common areas to afford handicapped individuals full use and enjoyment of the premises.  So if you were so inclined you do have the right to request that the board allow you to modify the location being used for meetings (for example, by building a ramp) so that you may attend.  You would have to pay for the modification, and it would need to be reasonable (in one case a woman wanted to build a ramp into a pool that covered half of the pool—that was not considered a reasonable modification).

Dear Poliakoffs,

I am on the board of directors of a condominium in Cocoa, FL.  We are in the process of accepting bids for annual condo maintenance.  The president rents his unit to his stepson and wants the board of directors to hire him for this maintenance contract.

Is this a conflict of interest, since the stepson will be paid by condo funds that, in turn, would be used to pay rent to the president?  Can the president cast a vote, or must he abstain from voting?  The president will be signing the contract.  Signed, D.B.

Dear D.B.,

So long as the president discloses the relationship, nothing in the law would preclude the board from deciding to hire the president’s stepson to work for the association.  Regardless of who the Association hires, it needs to have a written agreement that complies with the provisions of Florida Statutes 718.3025 and 718.3026.  Inclusive in FS 718.3025 is a provision that requires the disclosure of any financial or ownership interest a board member or any party providing maintenance or management services to the association holds with the contracting party.  A few years ago, board members were not allowed to abstain from voting unless there was a financial conflict of interest—but under the current law, the president may abstain from this vote if he feels it’s appropriate.  However, an abstention is still not required, though probably prudent.

If the president does hold a financial interest in the company contracting with the association (though simply collecting rent from his stepson is not a financial interest), the contract must be approved by an affirmative vote of two-thirds of the directors present at a meeting at which a quorum is present.

Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is the Vice President of Management at AKAM On-Site.  Email questions to condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

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One Response to

  1. maze2 says:

    We are in the process of purchasing a Condo in FL. I received this message from the bank after they reveiwed the Budget.

    Reviewed the submitted budget. The budget line item for reserve funding states only 6.10% of the project income is being set aside as reserves. Minimum required is 10%. Cannort use the “reserrve fund” account to clear this condition.

    They are now saying they will not approve the loan unless the Condo Assoc changes the budget. I can not see the manager changing a budget just to satisfy a bank.
    What do you think of this?
    Thank you

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