Condo owner: Can I attend membership meetings along with my designated power of attorney

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: If a condominium unit owner submits a "limited power of attorney" form to their association secretary listing a non-resident in that condominium association as their representative to speak and act on their behalf at membership meetings, does the owner forfeit the right to attend alongside their "attorney?" What if the owner happens to be on the board? Can they and the limited power of attorney representative simultaneously attend? Signed, F.H.

Dear F.H.,

The owner would forfeit their right to attend the membership meeting. The entire point of a power of attorney is that another person is exercising your rights in your place. The owner has a right to attend the meeting; the person to whom he granted a power of attorney would be exercising that right instead of him. I cannot see a situation where the owner and their non-owner power of attorney could both attend the meeting.

With respect to a board member, we need to remember that the board generally has no role at membership meetings. The only person who might have a role is an officer, the president, who is typically the chairperson of the meeting; and then perhaps those officers who are presenting at that meeting, if relevant. In any of those situations, it would get tricky. I say that the officer should attend to accomplish their officer duties; but they should not otherwise participate as members in the membership meeting if their power of attorney is present (vote, speak to the agenda items, etc.).

Question: Regarding your recent advice that a condominium association could clean a pond that was not on its property, wouldn’t that be trespassing? Shouldn’t they instead contact code enforcement or the city? Signed, G.P.

Dear G.P.,

Both very good questions.

As for code enforcement or the city, yes, that’s a possible solution, but only if the condition of the pond violates a code. Just because a pond isn’t as clean as the neighbors would prefer, or full of weeds, or unsightly, that does not automatically mean that the condition of the pond constitutes a code violation that that the municipality could enforce.

As for trespassing, yes, it’s technically trespassing. But the chances of an absentee landowner who is neglecting their property complaining because a neighbor is taking care of it for them seems incredibly low.

Even by doing so, there’s little risk that the neighboring condominium could claim it at some point owns the property by adverse possession — among other things, the condo wouldn’t be paying the taxes on the property. They’re just giving the neighbor a free benefit. I guess if the neighbor preferred a dirty, decrepit pond they might complain, but I just don’t see that being likely.

Question: I live in a community governed by an HOA. Our architectural restrictions, standards and regulations are about 30 years old, and some of the rules are not enforceable according to Florida statutes.

Do we need to hire an attorney to update our standards? And if so, after they are updated, do they need to be recorded?  Signed, A.C.

Dear A.C.,

There is a very complicated analysis that must be done to determine whether a statute that post-dates a declaration of covenants supersedes those covenants. Very loosely, laws that are procedural in nature control regardless of when they are promulgated, where laws that affect substantive rights would not control over your previously existing governing documents unless you have language stating that they will be governed by the statutes as they are amended “from time to time.”

Ignoring the substantive/procedural analysis, let’s assume that you have architectural controls that prohibit conduct that has become protected.

For example, let’s say your community prohibits satellite dishes — that would conflict with the federal government’s Over The Air Reception Devices rule (which gives everyone a right to install a satellite dish or antenna with certain conditions). You would not need to amend your covenants or architectural rules — the statute simply supersedes the rule, and the architectural control is unenforceable.

Now you can, if desired, amend the covenants or rules to be consistent with current laws, because it helps to avoid confusion — but it’s not mandatory. Either way, you would only need to record that amendment if it’s the type of document where amendments need to be recorded.

Amendments to a declaration of covenants must be recorded in the public records to be effective; whereas amendments to board-made rules, unless otherwise provided in the association’s governing documents, do not.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: HOA advice: Can owner attend meetings along with power of attorney