Dear Poliakoffs,

I am the president of our association.  We are a community of 88 one-story townhouses, 26 duplexes and 12 triplexes. We are classified as a condominium.

We will start to repaint all buildings starting Oct. 1 this year. For 30 years these homes have been painted several shades of beige. Our board would like to introduce some color this time on a voluntary basis.

Here is our problem:

Florida Statute 718.113 requires us to obtain approval of 75% of the homeowners to change a color. In reality, this is an impossible task. We need 66 yes votes to proceed. Most of our people are full-time residents, but there a few rentals and some snowbirds.

If we get 50% vote participation for the election of directors, we feel that we have been very successful. Should we pump the color vote to 80% of the voting interests, it would take only 6 no votes to kill the effort. A 90% vote is equally bad as the number is only 14. How fair is that?

My question is this: can we discard those people who, after multiple requests from the board, still choose not to vote, and base the 75% requirement on those who are interested enough to vote?

Signed, R.B.

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Dear R.B.,

Your situation sounds like the exact reverse of the seminal case on paint color alterations, Islandia Condominium Association v. Vermut. 

In Islandia, the community was originally painted in various shades of color, with different buildings painted in different tonal groups.  A board at Islandia decided that they liked the idea of a uniform community, and so they would paint all of the buildings light brown. 

The Islandia declaration of condominium provided that certain types of alterations, including the change in paint color, required a two-thirds vote of the unit owners.  The court held that “changing the color scheme of the development from one of multicolor clusters to one uniform color clearly fits within the [definition] of substantial, material alteration.” 

Interestingly, it’s not entirely clear that any change in color, of any kind, would constitute a material alteration — but your situation is so similar to this one that I think you are properly evaluating this as a material alteration issue.

The Condominium Act, at Section 718.113, Fla. Stat., provides that “there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein.

“If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced.” 

I am assuming that your declaration does not provide otherwise, and that, as you suggest, you are bound by the 75% provision in the statute.

I’m a little confused by your math, but your situation may even be more difficult than you describe.  I understand you to be saying that you have 126 total units.  You need 75% of those units to approve the alteration — or 95 votes. 

It’s not a percentage of a quorum, it’s a percentage of the entire membership.  Sixty-six yes votes doesn’t do anything for you.  It could be that I am misunderstanding how you are describing your community, but just keep in mind you need 75% of the total voting interests to approve the alteration — not a percentage of those voting. 

So, it’s not really a question of how many “no” votes you get.  Instead, you need 75% affirmative votes to move forward.

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Unfortunately, you would not be able to just remove people who fail to vote, even repeatedly.  Failing to vote is effectively casting a “no” vote in this situation, as they are not approving the project. 

Owners are not obligated to vote if they choose otherwise.  Some people may not vote simply because they do not approve the project. 

I can say, however, that I have seen many material alteration votes succeed, even when the board assumed it was an impossible task. It simply requires an aggressive “get out the vote” effort and a public relations campaign from the board explaining the nature of the project. 

Another option, which may actually be easier, depending on the vote required, would be to first amend your declaration of condominium to provide an easier method of approving material alterations, generally (remember, the statute defaults to whatever is in your declaration as recorded or amended).  Then, you can conduct the vote pursuant to that loosened standard.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law.  This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles.   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 [email protected].  Please be sure to include your location.

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