Resident wants change in decades-old metal roof ban, but HOA president blocking vote

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: Our HOA has refused to allow metal roofs (except for metal shingle roofs). When questioned, the HOA president advised me that the original declaration of covenants and restrictions prohibits metal roofs. I told him I understood, but since the HOA was established in 1995, before metal roofs became popular and were proven to be sturdier than shingle roofs, I inquired if the subject of metal roofs could be discussed and voted on by all residents. I was told it was not going to be discussed and that it was a dead issue.

Does the HOA president have the authority to determine what proposed changes to the declaration of covenants can be considered by all residents of the community? Do I have any recourse? Signed D.H.

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Dear D.H.,

Your declaration of covenants will describe how they can be amended. The first question is what type of vote is required?

Some declarations require the approval of both some percentage of the board, as well as of the membership. If that’s the case, and if a majority of the board will never agree to the amendment, then you’re dead in the water and have no recourse short of replacing the board.

Alternatively, other declarations require only the approval of the membership, or instead may provide different voting percentages depending on whether the board supports the amendment.

Let’s assume for the sake of argument that your declaration can be amended by a vote of the membership, regardless of whether the board approves the change. The next question would be how amendments are brought to the membership for a vote.

When you look at your bylaws, what does it say is required to bring an issue up for membership approval? Sometimes the decision to call a membership meeting is left to the president or the board alone, in which case you are again left with few options. But, other times the president is obligated to call a membership vote when they receive a petition signed by a certain percentage of owners.

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So, if we assume that your declaration can be amended by the membership alone; and also, that a percentage of owners can petition the president to call a membership meeting for a particular purpose, then that is going to be your only avenue to move forward. With that said, you still have a lot of hurdles to clear.

First, the association is not going to draft the amendment for you — you are going to have to do that on your own. Furthermore, in order to get the required membership vote, you will need a substantial portion of owners to participate at a meeting either in person or by proxy. But the association has no legal obligation to send proxy forms to the owners when it sends out the notice of the membership meeting. So, if the amendment is going to pass you not only need to prepare a legally-compliant amendment; but also you will need to prepare legally-sufficient proxy forms with the date and time of the meeting and circulate them to enough owners to satisfy your approval requirement. It’s not impossible to accomplish, but it will take a lot of work, and in the meantime, there are many ways for the board to impede your efforts (including potentially cancelling the meeting and re-noticing it for a different date, which arguably invalidates any proxies that you would have already collected).

It might frankly be easier to coordinate a board recall or to simply vote in a new slate at the next election (one that presumably supports a metal roof amendment).

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As a long shot, you could try to argue that metal roofs constitute an energy saving device of some kind. Section 163.04, Fla. Stat. says that a covenant may not prohibit solar collectors, clotheslines, or “other energy devices based on renewable resources” from being installed on a lot. It seems that this statute intended to address things like solar panels and windmills, but I have seen some very aggressive arguments made that certain alterations to homes constituted an “energy device based on renewable resources” such that they must be allowed. I’ve seen this argument made about awnings (reducing electricity usage by keeping the home cool), skylights (allowing in more natural light to, again, reduce the use of electricity); etc. Such arguments are not always successful, but I do wonder if you could make a similar argument about metal roofs. I do see “energy efficiency” as a commonly listed benefit, as metal roofs allegedly help to reduce heat in your home (they reflect UV and infrared light). That argument might be worth a shot.

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: Palm Beach County HOA expert maps homeowners' recourse to change rules