a resident refuse another resident access to his unit so that
a pipe that services both units can be replaced? The person
claims we cannot enter his unit without his presence and it
will be several months before he is in town.
unit owners have a right to access to common pipes or
infrastructure in order to have necessary repairs completed.
Pipes and wires may run through one unit to service another
unit. A review of your governing documents may have specific
language you can cite in order to gain access. If not, there
is language in 718.11 (5) that provides the authority as
follows: RIGHT OF ACCESS TO UNITS.—
The association has the irrevocable right of access to each
unit during reasonable hours, when necessary for the
maintenance, repair, or replacement of any common elements or
of any portion of a unit to be maintained by the association
pursuant to the declaration or as necessary to prevent damage
to the common elements or to a unit.
first thing you should do is contact the management company or
the board. If you are still being refused access you may have
to contact an attorney to force the board or the management
company to require the owner to permit access. If the resident
is not available to facilitate access - the association should
have a means of gaining access. The association should arrange
to have someone present in the unit if it is unoccupied-
perhaps a trusted neighbor. What would the same unit owner do
if he was out of town and there was water leak in his unit? I
am certain the owner would find a way to facilitate access to
permit a repair to his unoccupied unit.
Konyk, our condominium governing documents state that "a
unit may not be leased or rented without written approval from
the BOD and that such approval shall not be unreasonably
withheld." No additional clarity is provided regarding
any financial vetting. The Board passed a rule that a minimum
credit score of 675 is required. I questioned the
appropriateness of a board based rule and tha association's
attorney written reply stated that the board of directors has
the authority to review leases and set criteria for such
review. It seems like a really big leap to me.
association's attorney is the proper authority to answer your
concern. If the board has the right to approve - it more than
likely has the authority to develop reasonable criteria to
assist in the process. Provided the board is consistent in its
application of the criteria it is within its rights to create
such criteria. There is some controversy regarding denials
based on credit ratings especially in regards to denying a
renter - but is not prohibited.
have changed management companies and are finding it difficult
to get all of our records. What can we do to prevent this from
happening in the future.
association is required to keep seven years of records –
which can end up being a lot of boxes of paper. Management
companies store the records for multiple associations and
sometimes may misplace a box. Since the board has a fiduciary
duty to retain the records – the board should take every
precaution to assure the records are properly stored.
are recommending that all of our associations scan the
official records and store them on a disk, and if available in
the "cloud". There are companies that will pick up
the boxes and scan them to a disk or a flash drive. Some of
them have the ability to keep a copy on file in case the
association loses the disk. We would advise that each year be
kept on its own disk and that the files be stored in folders
on the disk that identify the contents of the folder. The
first time the association undertakes the scanning of the
prior six years of records will be the most expensive.
Thereafter – the association will only have to scan one
year's records. Any document protected by attorney client
privilege or not open to inspection should be retained in a
separate folder. We also recommend that the minutes be kept in
a folder and not on a disk. Other than minutes and original
recorded documents – the records for seven years should be
retained and anything older than seven years should be
destroyed. This will not only assist the association in
retaining its records properly, it will make it easier to have
the records available for a records inspection. Some of our
larger associations have purchased an inexpensive laptop for
the resident to use in the office while reviewing the records.
One important fact to note – when you are presented with a
request for official records that contains multiple documents
or multiple years, you are not required to locate all of the
documents – you are merely required to make the records for
the time frame requested available so that the resident may
select the records they want to review.
the recent changes in the laws governing community
associations it is imperative that association take
precautions to make sure the records are maintained for seven
years and scanning the files assures that the records will not
get lost or destroyed.
buyers in our condo have been denied financing even with 50%
down because the clubhouse and pool were never deeded over to
was the logic behind leaving the principal common elements
with the developer in 1973?
would think this suppresses values depending on cash buyers.
Love your weekly column.
for the acknowledgment! This snafu is not as uncommon as one
might think. Very often the developer merely forgot to turn
over the common elements. Sometimes there may have been an
underlying reason for the failure to "turn over" the
common elements. There are a few ways to correct this but it
would require a review of the governing documents among other
things. If the developer still exists very often they will
agree to complete the necessary paperwork – which given that
the community was developed in 1973 it is highly unlikely the
developer can be located. The association may be able to
engage the services of a real estate attorney to handle an
action for "quiet title". This issue should be
brought to the attention of your general legal counsel who
should be able to assist in getting this resolved.
hope you can help us. I live in an 84 unit condominium. Just
recently the president told that we needed to change the way
that we have paid the common expenses from equal shares to a
percentage of unit ownership. Our Declaration clearly states
that common expenses are paid equally and the insurance is
paid by percentage.
was done without a vote because the attorney said that since
our Declaration says "the terms used in this Declaration
and in its exhibits shall have the meanings stated in the
Condominium Act (711.03 Florida Statutes as amended), and as
follows, unless the context otherwise requires." He said
that this is Kaufman language and the President can change
without a vote. How can this be true? We have to vote on
everything else. If we do have to vote, what do we need to
have it pass?
cannot answer your specific question, as it would require
review of the provision in you governing documents, which is
not the intent of this column. In general, the declaration
will state the method for determining the amount of
assessments and each unit's pro-rata share. Your Declaration
should state that the assessments are collected equally or by
a percentage and you should be able to find that reference in
the Declaration. Interestingly – without an affirmative vote
of the entire membership, the proportionate share cannot be
modified at all. It is unlikely that any vote would attain
100% participation let only 100% of the membership voting yes.
It is not uncommon for the assessments for insurance to be
based on a proportionate share when the units are of different
sizes and configurations.
reference to "Kaufman" language refers to a court
case that in essence says that since a declaration is a
contract you cannot modify it through legislation UNLESS the
declaration has a provision contained in it to allow it to be
fluid with the law. Every association should consider amending
its declaration to add such language as it does protect the
association when it is collecting past dues assessments from
banks that foreclose and third party purchasers. The amendment
would require your association to vote on the amendment and
the language that would be added, similar to what you have in
your declaration, that would merely state that the provisions
are to be interpreted "pursuant to Chapter 718, Florida
Statutes as may be amended from time to time. If an
association does not have such language in the declaration,
its association attorney can best advise how to accomplish an
amendment to add this protection.
community issues fines – through a fining committee and the
fining committee signs the letters and assesses the fines etc.
I thought the law changed to clarify that this is not the
are correct. The language referencing the ability to fine for
violations was modified to clarify that it is the intent of
the legislature that the board levy the fine and the fining
committee is limited to either ratifying or waiving the fine.
The fining committee does not levy the fine. The procedure
requires a specific process which includes a letter to the
offender stating a fine will be levied by the board for the
violation and the letter must state that the owner will have
the opportunity to be heard by the committee before the fine
is imposed. The committee's only task is to either ratify the
fine or waive the fine – it is not permitted to modify the
fine or negotiate with the violator. One more word about
fines, in my opinion, fines are intended to be corrective, not
punitive, therefore if the fining process does not work, the
board may have to consider engaging its attorney to force
compliance through legal action.
condominium vice president never comes to meetings; Can the
board replace him?
bylaws provide for a person to be elected to the board as a
director and the director's vote for the officers at an
organizational meeting. If an individual is elected to the
board as a director, an individual can be removed as an
officer with or without cause by a vote of the board, unless
the bylaws are specific as to removal. If the members elected
the person to be the vice president, the officer cannot be
removed by the board and must be removed by the vote of the
Board of Directors meets every month. After the recent
election, the new President of the Board stated that the
"minutes of the last meeting will not be read", as
they are posted in the Office. Can the President of the Condo
make this rule? It seems as if he is trying to hide something.
reading of the minutes of the previous meeting may be either
read or waived at each meeting. The minutes of the meeting,
whether in final format or otherwise, are part of the official
record of the association and must be available to the
membership for inspection and copying. Your association has
more than complied with the requirements of availability of
the minutes by making them available in the association
office. If your Association is posting the minutes at the
office, they have established a basis for waiver of the
reading of the minutes at each meeting, but they have not
eliminated the necessity of bringing it up at each meeting.
Your Association documents may or may not contain additional
requirements for the posting and / or reading of the minutes.
the minutes of the membership meeting serve as the permanent
record of the proceedings. The minutes are not required to be
an elaborate account of every discussion or debate that took
place at the meeting, but should identify relevant information
such as location, time, presiding officer and the exact quorum
in attendance. Florida Statute 718.111 requires that the
minutes be retained for seven years. Their content should
include any motions made, the result, and other pertinent
items of business.
am a Board member of our condo association. My question is,
are owners allowed to call in remotely and listen to our
monthly meetings via speakerphone? We always have the phone
set up because normally there is a director or two who has to
call in. I thought I saw somewhere that owners are allowed to
call in, but now that I need to prove it, I can’t find it,
so maybe I’m mistaken.
law does provide that a Board member can attend the meeting
via teleconference – but it is silent as to whether or not
owners can call in to attend. Therefore, it would be up to the
association’s discretion if it wanted to allow owners to
call in to listen to a board meeting.
original documents stated that amendments to the declaration
are to comply with the Florida Statutes. This was amended to
remove the Florida statutes and replace it with "the
affirmative vote of at least sixty percent (60%) of the voting
membership, in person or by limited proxy, at a membership
meeting called for this purpose". We have 72 units in our
association. So, does the amendment mean any changes require
60% of the 72 units (44 votes) or does it mean 60 % of the
membership that bother to show up to vote or send in a proxy
vote? For example, could an amendment pass with 35:1 votes in
favor of the amendment?
the example you have shared, a amendment would be ratified if
it received a minimum of 44 votes. If the verbiage in the
declaration said "the affirmative vote of at least sixty
percent (60%) of the voting membership present, provided
a quorum has been achieved, in person or by limited proxy
at a membership meeting called for this purpose", than 60
% of those present could ratify an amendment. If the word
present was included the amount needed to ratify would
fluctuate based on how many members were present (in person or
by proxy) provided there is a quorum. If 72 members attended
the meeting – 44 residents could ratify an amendment. If a
quorum is a majority of the membership, as it often is in a
condominium, and if a minimum of 37 members attended the
meeting, then as few as 23 members voting in the affirmative
could ratify an amendment.
Condo Board of my Association decided to change the fiscal
year which entitled them to postpone the annual meeting and
extend their status on the board for an additional 6 months.
Is that legal?
the Articles of the Incorporation or the Bylaws will state
that the fiscal year shall be – either the calendar year or
some other 12-month period. The board of directors cannot
merely decide to change the "fiscal year" without a
vote of the owners unless the governing documents give the
Board such authority. A quick review of your governing
documents will provide the answer. If there is not any mention
of a "fiscal" year than it is the calendar year by
a property management company have a legal relationship with a
national company that supplies maintenance products for a
community, whereby the property management company only brings
in this one vendor to supply their product? And is it legal
for the national company to pay a property management company
for the leads it provides for these products? Thank you. I
look forward to your response.
management company must provide full disclosure of a financial
relationship with a vendor. In fact, most edits attorneys
prepare for such contracts require full disclosure of such
issues. That is why a board must compare apples to apples when
selecting a vendor. Multiple bids are required for many of the
services contracted for by an association – which is
satisfied if there are two bids.
Konyk, I love your Ask The Lawyer site. Thank you for
providing such clear and understandable information relating
to condos. My questions are:
How do I get an official recorded copy of a condominium
prospectus? I only have some of the pages in my copy of the
prospectus. I think I may get it from the Division of Florida
Condominiums, Timeshares and Mobile Homes but do not really
know. The condominium is located in Florida and was built
prior to 1980.
My understanding is that the prospectus is a summary of what
is in the Declaration of Condominium. One of the pages I do
have of the prospectus states - "the sale, lease or
transfer of your unit is not restricted or controlled."
My understanding is that unless there is an amendment to the
Declaration of Condominium, the Board of Directors can't
restrict or control rental of the unit. Could you clarify?
A related inquiry I have is that the Board of Directors say I
as the owner of the unit can't have a roommate to share
expenses. Could you provide some guidance? Thank you for all
for your kind words. The prospectus is not a document that
will be used to govern the community and if it in not recorded
in the Official Records of your county – you may not be able
to get a copy. A prospectus is merely used to explain an
offering, although it should be in compliance with the
Declaration. ONLY a provision in the Declaration can be used
to limit your ability to sell or lease your unit. If the
Declaration is SILENT there are no restrictions. The board
cannot make a rule to modify the Declaration and if there is
not a provision in the Declaration – even if it is in the
Articles or the Bylaws – the Association may not interfere
or limit your ability to sell, lease or have a roommate. An
important point – if there is a provision that states that
only the entire unit may be leased, that provision could
prohibit you from having a roommate.
our annual meeting, the board voted to reduce the number of
directors to seven from nine. Our bylaws read- The affairs of
the Corporation shall be governed by a board of Directors
composed of not less than three (3), nor more than nine (9)
persons, as is determined by the members" It is a not for
profit corporation operating as a condominium. In previous
years, the board did not hold an election because there never
was a number of applications greater than the number (9)
positions. This year at a board meeting just before the annual
meeting, the management manager explained that a lawyer had
stated to him, that because the board had been operating for
years with seven members that seven directors would be
acceptable. An election was held for seven positions and there
were 8 applicants. At the meeting, the management selected a
man and his wife to count the votes. I thought it should be an
impartial committee. I failed to object but it seems that a
committee should be three or more and a married couple may not
be impartial and that a third person should have been
appointed. My question - Was the action of the board to reduce
the number of directors for the election proper since the
bylaw states that the number of directors is determined by the
members? This was done immediately before the annual meeting
and the ballot instructions were to vote for no more than
married couple can count the votes provided they are not
running for the board or living with or married to someone
running for the board. Why would you suggest that they are
impartial merely because they are married? The Association
should consult with its counsel to determine the proper number
of Board members. From the limited verbiage, you provided it
appears that the numbers of board members is determined by the
members, which is usually defined to mean the owners of the
units, not just the Board. If the membership has never voted
to determine the number required to serve on the Board, it may
be something that should be voted on by the membership.
Board sent out a Proxy for changes to our Declaration of
Condominium to all the owners of our condominium. My question
is if the changes listed in the Proxy are approved by the
number required, do all owners have to abide by these changes.
I was told that if you vote no or do not vote that you as an
owner do not have to abide by the changes.
amendment prohibiting unit owners from renting their units or
altering the duration of the rental term or specifying or
limiting the number of times unit owners are entitled to rent
their units during a specified period applies only to unit
owners who consent to the amendment and unit owners who
acquire title to their units after the effective date of that
amendment. Other than that, you are bound to comply with
amendments to the Declaration if ratified by the membership,
even if you vote no or don't vote.
were told that our condominium association may be exempt from
paying sales tax on some of the electric that is used in the
common areas, but we cannot find any information about this on
the FPL website.
Association may be exempt from paying sales tax on electric
power used for the benefit of the members. This almost unknown
provision of the Florida Administrative Code, Section
12A-1.053 (1) (a), provides for a sales tax exemption on
electric power or energy used in common areas of condominiums,
cooperatives, and homeowner associations. Since the
responsibility for lighting streets and common areas in
associations is, in many ways, a quasi-governmental function,
the statutes and regulations allow a similar sales tax
exemption that a government receives for providing the same
service. Often referred to as the common use facility
exemption, the provision provides that an electric utility
does not have to collect or remit sales tax on electric power,
when that power is sold to and used by condominiums,
cooperatives, and homeowner associations in the common areas.
must meet several state requirements, first of which is
exclusive use of the power. In order to claim the exemption
from sales tax, 100% of the energy must be used exclusively by
the members of the association. None of the energy may be used
in any activity which sells or rents a commodity or provides a
service for a fee. If an association operates a public or
semi-private facility, then the electric power used in that
facility will not be eligible for the exemption. An
association cannot allocate percentages to apportion the
energy used between exempt and non-exempt uses. All exempt
uses must be metered separately from non-exempt uses.
Florida Department of Revenue has concluded that there is some
electrical power used in the common areas that is not exempt
from sales tax, such as energy that is used to operate a water
or sewage system. In addition, non-energy charges, such as
charges for re-lamping street lights or pole and light rental
are not exempt.
order to claim your exemption, you must have a responsible
legal entity established, such as your existing Florida
not-for-profit corporation and, in the case of homeowners'
associations, membership must be mandatory for all owners in
the community. The utility will require written documentation
establishing the customer's entitlement to the exemption. FPL
has a packet of information and forms for a community
association to obtain exempt status under the regulation. The
package includes a form to request a refund (limited by a
number of years) for sales tax that was paid prior to applying
for the exemption. The forms can be obtained by contacting FPL
at (800) 749-2285, Option 22. The form numbers are: form 6037-
Common Use Facilities Exemption; form 792-Common Use
Facilities Rider; and form 6036-Application for Refund of
Florida State Sales and Use Tax From Florida Power and Light.
10years ago our HOA BODs passed a motion, not an amendment,
allowing board members to spend up to $5000.00 without prior
board approval for any project a director choose to fund.
There are a number of us in the HOA that are of the opinion
that in doing so, spending the monies without a vote of the
BOD, is in violation of our documents which read that approval
of the BOD is required for spending up to $5000.00 and that
over that amount requires a vote of the members. The directors
say that because a motion was passed they can spent the monies
is not correct. If the governing documents call for Board
approval – Board approval is required. You cannot modify the
governing documents by a vote of the board – which is what
was attempted. I would recommend the association's counsel
provides an opinion regarding this after a review of the
provisions in the governing documents.
Condo Association had to take out a $10 million-dollar loan
for repairs. The Board of Directors wants to "build
in" an assumed delinquency rate for owners that are not
currently paying their regular maintenance fee, since they
figure those same units will not pay the special assessment.
Is this legal? What if the delinquency rate is lower than the
10% additional the membership will be paying? Will that extra
money be returned to the membership? Any guidance you can
provide would be greatly appreciated!
would recommend that the Association's auditor be contacted
for an opinion as that would be the appropriate person to
weigh in on financial matters. That said, we have seen where
it has been recommended to build-in an amount for
unanticipated cost overruns – but not for unanticipated
shortfalls because of a delinquent owner. A shortfall from
delinquencies may be difficult to anticipate and perhaps
should be shared among the owners if in fact there is a
write-off for uncollectable funds.
close as we can determine, our condo documents refer to three
types of amendments, a Corrective Amendment, a Regular
Amendment and an Extraordinary Amendment. The Regular
Amendment, which is the type or amendment in question requires
a two-thirds vote to amend the bylaw. We are an 8-unit
association. Our question is how do we arrive at the 2/3
requirement. I hope I can explain the question. My wife says
the 2/3 vote is determined by 2/3 of 8 which is 5.28, in other
words, if 5 (disregarding the fraction) of the 8 units vote
yes, the amendment would pass. My position is that since we
cannot arrive at an even 2/3 with 8 units, we would require 6
yes votes. five votes would be .625, six votes would be
.750.What is the correct answer?
would love to simplify your life and tell you your wife is
correct, but in this instance –you are correct. I am not
sure what is meant by regular vs extraordinary – but based
on the information you provided you would need six (6) votes
to ratify a "regular" amendment. 8 divided by 3
times two equals 5.33 and you round up to 6. It would seem
logical to disregard the fraction as it is less than ½ of
one, but in this case, we round up.
and many thanks for helping us! We received the second notice
for our annual membership meeting. Listed in the proxy are (3)
items requiring a vote. The first item is asking us if we are
in favor of a proposed amendment change to approve material
alterations from 75% of the entire membership to 51%. Many of
us have attended every meeting and this was never discussed
and in receiving the proxy it's the first we heard of it. We
recently learned from a current board member it was discussed
at a budget meeting held off premises and the board didn't do
anything wrong because the budget meeting was in fact posted
and it's not the board's fault no one showed up. Should this
change have been discussed openly at a regular board meeting?
budget meeting IS a board meeting and provided the meeting was
posted, and the matter was on the agenda, the board could
discuss such an amendment and it could proceed to ask the
membership to vote. The board can hold its board meetings
"off-premises" provided the meeting is properly
noticed. As an owner, I would be more concerned about a board
decision that did not require the vote of the members. The
board is giving you an opportunity to vote on the matter,
therefore, you will have an opportunity to vote either to
approve or disapprove.
association conducted our annual meeting and board of
director's election a couple weeks ago, and a few unit owners
noticed what was clearly a violation in the method in which
the ballots were opened. The head of our management company
sat at a table surrounded by much of the membership and opened
each outer envelope then opened the inner envelope containing
the ballot and laid the ballot face up on the table. Then
proceeded to open the next outer envelope followed by the
inner envelope contained within. She opened each individual
ballot this way unit complete. Many members viewed the outer
envelope with the unit number and name and then viewed the
ballot as it was opened and placed face up for each unit.
Therefore, reveling how that member voted. It was recommended
to us to file a complaint with the DBPR. If we do that, what
might that department do? What such remedies are available?
Thanks for any advice
is doubtful that the DBPR would react to the handling of the
ballots, as the results of the election were not affected.
Perhaps a better solution would be for the membership to
petition for the appointment of an election monitor in advance
of next year's election pursuant to FL STAT 718.5012 (10 and
the Florida Administrative Code Rule 61B-23.00215. The forms
to do such can be found on the DBPR website. The Association
would be responsible for the costs involved pursuant to
have a number of owners in a large condo building whose
accounts are delinquent by over 90 days. The board posted an
agenda to revoke voting privileges 48 hours prior to their
meeting, but did not list unit owners or unit numbers in the
notice. They did not notify the owners of the action to be
taken. They voted to revoke voting privileges, mentioning only
unit numbers. Should the notice of the meeting have included
unit numbers or unit owner names? Should the delinquent owners
have been notified in advance of the meeting? Should the
owners have been identified at the meeting?
notice does not need to include the names or unit numbers of
the members whose voting rights are being revoked – but the
board resolution and the minutes must contain identifying
information such as Unit numbers. The Unit owners are required
to be notified of the revocation within 14 days after the date
of the meeting.
CAM's contract was good through until December 31, 2016. Our
association held its annual meeting the second week of
December in which all of the 7 Board of Directors were voted
out. The Board now consists of 7 new members. When does the
new Board of Directors officially take over? Is it the day of
the election, or the beginning of the calendar year? I ask
this because I believe the Board of Directors that was voted
out, resigned the CAM's contract for 2017 (even though it
expired on 12/31). I'm wondering if this was legal, or it's up
to the discretion of the newly elected BOD to extend this
it looks like a duck, talks like a duck and walks like a duck
– it's a duck. In other words – if the board makes a
decision – while it is still the board of directors, the
association would be bound by that decision, absent fraud or
some other circumstance. The board of directors has the right
to renew a contract even when there is an upcoming election.
As to when the new boards service begins? That would depend on
the provisions in your Bylaws. Most boards take their seats
the night of the election, but there are some bylaws that
require that the term begin on a specific date.
building allows owners to rent their condo once/year for
anywhere from four months to the entire year. I have already
rented my apartment for 6 months this year. I have a
prospective buyer who wants to know if he buys the condo, if
he will be able to rent the apartment this year, since it has
already been rented once. The building hasn't (won't?) give me
a straight answer, or the name of the building attorney and I
need to let the prospective buyer know ASAP. Does a new owner
get a restart of any rental restrictions?
depends on where the restriction is found and how the
restriction is written. If the restriction references Unit
(instead of Owner) and calendar year, the association could
take the position that the unit may not be rented within the
same calendar year regardless of who owns it. If the
restriction refers to an "owner" not renting more
than once in a calendar year – you could take the position
that a new owner has the right to rent restores. The more
important issue is where is the restriction on rentals found?
Unless it is in the Declaration, it is not enforceable. An
association cannot restrict rentals by a vote of the board or
by a board approved rule. In order to restrict sales or leases
the provision would have to be in the Declaration.
November we elected 5 new board members. Prior to this year’s
first meeting one of the new board members resigned. What is
the proper procedure to replace this board member??
the Bylaws contain a provision requiring that the members can
vote to replace a board member. You would need to review the
Bylaws to see if this is addressed. Please note – this is
one of the rare instances when the Bylaws control – even if
a higher authority such as the Articles or the Declaration
contains a conflicting provision. Unless your Bylaws provide
otherwise, the board has the authority to appoint a
management company has been requiring us to enter in to
contracts with its "preferred vendors." They are
claiming that they have negotiated a better deal than we could
on our own – but they are advising we are not permitted to
make any changes nor are we permitted to have our own attorney
review the contracts. Does this seem reasonable? The
management company is getting a "finder’s fee"
that they are claiming offsets all of the time and efforts
they have expended on our behalf. I am not sure this is a good
thing or a bad thing. The contracts are for cable TV and
association has a board of directors that is charged with a
fiduciary duty to the membership.
discharging his or her duties, a director may rely on
information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or
One or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in
the matters presented;
Legal counsel, public accountants, or other persons as to
matters the director reasonably believes are within the
persons’ professional or expert competence; or
A committee of the board of directors of which he or she is
not a member if the director reasonably believes the committee
A director is not acting in good faith if he or she has
knowledge concerning the matter in question that makes
reliance otherwise permitted by subsection (2) unwarranted.
would advise that the association not rely merely on the
advice of a management company that is recommending a
contractor that they have negotiated with and / or that they
have a financial interest in by outright ownership of the
vendor or by a finder’s fee if the board selects that
would further advise the association never to enter into any
contract without a review by its general counsel.
have seen contracts that board members have signed, such as
cable contracts for a ten-year duration – that are NOT in
the best interest of the association.
in doubt – ask your general counsel for advice.
condo board has seven members. Four of the board members are
close friends. Does this create an issue or appearance of an
issue when these friends meet at the pool or have a gathering
at one of the residences? Could other owners complain to the
state that there is something illegal going on? Meetings
without being posted? Etc. Does there have to be proof that no
condo business was discussed?
Boards are required to conduct business at a duly noticed
meeting. They are not required to give up being a member of
the community merely because they are devoting themselves to
serving on the board. They are permitted to socialize with
whomever they want. Serving on a condominium board is getting
more difficult for those who devote their time to the
community. The board members should refrain from discussing
matters that should be discussed at a meeting – and the
residents should not ask board members to respond to board
matters outside of a board meeting.
condominium association is in the process of attempting to
take out a loan for common element repair (roofing and
siding), and special assess all unit owners for each units’
share of the loan. The loan requires a majority of unit owners
to vote "Yes" to proceed. At the time of the loan
closing on February 1, not enough "Yes" votes were
received. About half of unit owners never voted. The board
wants to set up a new closing date, which requires the bank
being sent a new set of financials, and the bank issuing a new
commitment letter. The board want to count all the votes
received from the failed loan closing date (which was supposed
to close on February 1), and simply add new votes received to
this number prior to the new March 15 closing date. They view
this as the easiest way to get a majority of unit owners to
vote "Yes." Is this legitimate? Does the board need
to begin the voting anew given the new loan closing date and
potentially slightly different loan interest rates? If you
have any law/cases that could be cited either for or against,
this strategy would be helpful. Thanks so much for your help.
requiring the vote of the members do not fail because enough
people vote no – they fail because enough people do not
vote. This is a typical result and one that makes it difficult
to properly maintain the condominium property. My suggestion
is that the board pursue the members votes by written consent
in lieu of a meeting which is a procedure that would permit
the collection of consents for a period of ninety days. The
vote should be accomplished before the loan is initiated so
that you will not run the risk of the vote not being ratified
before the loan commitment expires. If the previous votes were
by proxy or by written consent – it is likely that the
previously collected "votes" will carry over. The
association should confer with its counsel to determine if the
previously collected votes can "carry over."
association annual meeting and board election is February 7,
are five candidates for three seats on the board. Three
candidates are incumbents.
we received the second notice with the ballot, I noticed that
the ballot states "You must vote for three".
believe that this is incorrect, misleading and would give an
incumbent an unfair advantage over a new candidate. (I am NOT
one of the candidates but clearly know that I don’t have to
vote for three members if I don’t want to.) The president of
the board said that she "Just noticed it herself"
and would be contacting our CAM. She stated that everyone
would be sent an email but new ballots would not be sent out.
My concern is that may absentee owners don’t use email, and
some may have already sent in their ballots.
would be the proper notification and procedure to correct the
error on the ballot?
in advance! I am interested to see how this all works out!!
take the position that a ballot cannot be disregarded if an
owner voted for less than the number of available seats. To
disregard such a ballot would disenfranchise the voter – who
most certainly has a right to select less than the number of
seats available. The ballot you were provided does not say the
vote will be disregarded if they do not vote for three
candidates, it merely states you must vote for three.
unit owner submitted their Intent to Run form late; it was due
no later than 12/28/16 and she signed the form 1/2/17. I .do
not know when it was received.
I advised she did not meet the 40 day rule per Section
718.112(2)(d)(4)(a). The President of the condo association
has advised he is "waiving the 40 day rule" for her.
know that is unlawful, and have advised such, but what is my
next step legally?
rules are specific – the board cannot waive the requirements
of the law. The Intent to Run has to be received within the
time allotted per the law or it is disregarded. The statutory
and rule language pertaining to condominiums may be found as
follows: CONDOMINIUMS; Section 718.112(2)(d), Florida
Statutes; Section 718.128, Florida Statutes; Rule 61B-23.0021,
Florida Administrative Code. If you want to pursue this, you
may file a written complaint with the Division of Florida
Condominiums, Timeshares, and Mobile Homes.
Mail your complaint to:
of Business and Professional Regulation
Division of Florida Condominiums, Timeshares, and Mobile
Blair Stone Road, Tallahassee, Florida 32399-1030
Or, e-mail your complaint to the Customer Contact Center at http://www.myfloridalicense.com/contactus/.
Or, fax your complaint to 850.921.5446.
30 days after receipt of the complaint, the Division will
notify you whether the complaint is within the jurisdiction of
the Division and whether additional information is needed. If
appropriate, the Division will then conduct an investigation.
the Board of Directors came up with a plan to replace all the
windows. They proposed a new window design and therefore sent
it to the owners for approval. In accordance with our
documents, the new windows and design were approved by a
majority of the owners. A small, but very vocal, subset of
owners continued to oppose the new windows. Some objections
were "we don’t need new windows". But several
objected to the design of the windows by the balconies. The
new design created floor to ceiling windows. Even though this
passed by a majority vote of the membership, these owners kept
objecting. Recently we had a BOD election. The vocal minority
won almost every seat on the Board. One of their first actions
was to table the new windows. My questions are: 1. Is the new
Board legally bound by the results of the election? 2. If they
are legally bound how can the "pro-window" owners
proceed? (I should add that another action immediately taken
by the new Board was to replace our attorney.) 3. Can the BOD
be held liable and accountable for insuring the safety of the
building regarding the incorporation of hurricane impact
board of directors is bound to follow the results of the vote
of the membership, provided the first vote conformed to the
requirements of the Declaration and / or the law, unless the
membership votes to approve alternate plan that cancels the
previous vote of the members. Pursuant to 718.113 Fla
Statutes: The board may, subject to the approval of a majority
of voting interests of the residential condominium to:,
install hurricane shutters, impact glass, code-compliant
windows or doors, or other types of code-compliant hurricane
protection that comply with or exceed the applicable building
code. However, a vote of the owners is not required if the
maintenance, repair, and replacement of hurricane shutters,
impact glass, code-compliant windows or doors, or other types
of code-compliant hurricane protection are the responsibility
of the association pursuant to the declaration of condominium.
If hurricane protection or laminated glass or window film
architecturally designed to function as hurricane protection
that complies with or exceeds the current applicable building
code has been previously installed, the board may not install
hurricane shutters, impact glass, code-compliant windows or
doors, or other types of code-compliant hurricane protection
except upon approval by a majority vote of the voting
other issue that may nullify the vote of the majority is if
the new design is considered to be a material alteration that
requires in excess of a majority vote. This would require a
review of your Declaration to determine if a vote of a higher
percentage is required.
The Board may not, by a vote of the board, ignore the vote by
the membership to proceed with the installation of hurricane
or new windows unless the new design is considered to be a
material alteration requiring a vote of a higher percentage
than what was achieved. 2.) A unit owner may petition the
Division of Condominiums for non-binding arbitration pursuant
to 718.1255, before resorting to filing litigation. 3)
Liability is not something one can mandate, but it is
something that would be decided in a court of law provided
there is an event that causes damage that may be attributable
to the action or inaction of a specific party.
president of our not-for-profit residential condominium
association (who has been our president for the past four
years) failed to meet the Notice of Intent deadline to run for
the board. Was it necessary for him to submit a Notice of
Intent? May he nevertheless run for re-election? We currently
have a board consisting of a maximum seven directors. And
there are currently nine candidates running for positions on
the board for election on January 7th at the annual meeting.
Is there a way to keep him as president? Thank you.
board of directors for your condominium association must be
elected by the process prescribed in Chapter 718, Florida
Statutes, and Rule 61B-23.0021, Florida Administrative Code,
unless your association has 10 or fewer units and has adopted
an alternate election procedure in its bylaws.
unit owner or other eligible person who desires to be a
candidate for the board of administration must give written
notice to the board not less than 40 days prior to the
election. Written notice is effective when received by the
association. Such notices of intent should be submitted to the
association by one or more of the following methods: certified
mail, return receipt requested, personal delivery, regular
U.S. mail, facsimile or telegram. Upon receipt of a timely
delivered notice by personal delivery the association must
issue a receipt acknowledging delivery of the written notice.
the President did not submit his intent to run in a timely
manner he was not eligible to be included on the ballot -
therefore he is ineligible to run for the Board.
matter of concern is the specific number of members permitted
to serve on the board. In a condominium association, pursuant
to case law, a Board shall consist of five (5) members unless
the bylaws specifically contain a method for determining
another number. Merely stating the board can consist of a
maximum of seven (7) directors is not sufficient to permit the
board to contain seven (7) members unless the bylaws outline
how to determine the exact number.
Our Board of Directors recently bought dinner for two owners
as a gift of appreciation for volunteering 16 hours over a
weekend to put up Christmas lights. The total cost of dinner
was $120. As background the building maintenance staff has put
up lights and did such a deplorable job that was a safety
violation. These two homeowners volunteered to take them down
to correct the situation. It became an onerous job and the
Board, of which I’m a member, thought they went above and
beyond and deserved something to show our appreciation.
homeowner complained that compensation to an owner for
volunteering work violates our fiduciary responsibility. Was a
code of ethics or law broken here ?
no good deed goes unpunished – the Board may not have the
authority to give a gift to a volunteer. Florida Statute, §
617.0830 General standards for directors provides that a
director shall discharge his or her duties as a director,
including his or her duties as a member of a committee: in
good faith; with the care an ordinarily prudent person in a
like position would exercise under similar circumstances; and
in a manner he or she reasonably believes to be in the best
interests of the corporation. The division of condominiums has
consistently found it to be a violation to offer such a gift
unless the governing documents specifically authorize the
purchase. Therefore, although it would be a stretch to
classify such a gesture of appreciation as a breach of
fiduciary duty, the gift may not be authorized by the
live in a large complex in Broward county. I rented in the
complex before purchasing. I don’t remember if it is yearly
or every other year each unit is given a set of rules. Having
lived in other complexes I find it hard to believe that these
rules are either legally written or that they contain any of
the rules original to the complex. How do I get a set of all
the bylaws as they appeared when the complex was originally
built. One question comes to mind as the management shuffles
parking spaces around at will, as well as maintaining the
premises and some other issues. I know by the attitude that
persists here, that if I ask for a copy they will hand me the
"brochure": they pass out and tell me that is all
the rules for the complex. I would like to know what I can do
legally to be sure I have the whole picture.
governing documents for a condominium consist of the Articles
of Incorporation, the Bylaws, the Declaration of Condominium
and the Board enacted rules and regulations. The Articles of
Incorporation are available by request from the Secretary of
State. The Declaration of Condominium and any amendments are
required to be recorded in the Official Records of the County
which are available from the Clerk of Court. The Bylaws are
not required to be recorded in the Official Records of the
County – but they usually are and would be available from
the Clerk of Court. The rules and regulations are not required
to be recorded but they should be available from the
association and any changes to the rules and regulations
should be reflected in the minutes of the meeting at which
they were approved.
you very much for assisting with your knowledge and expertise.
condo association will soon approve a special assessment to
fix balconies. There are 3 different size balconies and one
condo does not have any balcony at all.
monthly dues are based on condos’ square footage. My
questions are: 1. Shouldn’t the special balcony assessment
be rated based according to the size of the balcony? 2. If no
rating occurs, should the condo with no balcony be spared
since there is no common element there? Thank you in advance
for your guidance!
cannot offer specific legal advice – but generally speaking
every assessment for repairs to the common elements of the
association is applied pursuant to the pro-rata share as it is
defined in the declaration. Each unit would therefore be
assessed based on the percentage share for which it is
responsible, unless there is something specifically addressing
assessments for balcony repairs. Therefore, the assessment is
not based on the size of the balcony or whether or not the
unit has a balcony; it is based on the prorate share each unit
is required to pay based on the provisions of the documents.
a unit owner is more than 90 days delinquent in the payment of
assessments can the unit owner remain on the board? Our board
des not enforce this and there are board members that are
– a director or officer that is more than 90 days delinquent
in the payment of any monetary obligation is deemed to have
abandoned the office, creating a vacancy. If the board of
directors does not enforce this provision of the law a
complaint should be files with the Division of Condominiums.
live in a nine-story condominium that contains two levels of
parking space, 1 level of Assisted Living Facility units, and
the rest on condo owned units.
owner of the ALF, after 12 years of living in peace with our
association, has decided to take over 26 spaces in our garage
for his ALF units (even though they have been combined into 19
actual units) and he wants to use those parking spaces for his
employees to park in (even those employees that have nothing
to do with the ALF).
are telling them that they cannot just take 26 parking spaces
and give them to his employees because of the following
paragraph in our docs. Are we right, or is he?
of Condominium-pages 14 and 15
parking space(s) shall be considered a Limited Common Element
appurtenant to such Unit as designated on the Plat. The
parking space(s) so assigned (i.e. the exclusive use thereof)
shall be a Limited Common Element appurtenant to the Unit and
shall be for the exclusive use of such Unit and its occupants
from time to time. A sale, transfer or encumbrance of
the Unit shall automatically, without specifically mentioning
such parking space and without the execution or recording of a
further instrument, transfer or encumber such space. The
exclusive right to use such a parking space(s) may not be
separately conveyed, transferred, assigned or encumbered
except as an appurtenance to the Unit to which it is attached
or assigned in conjunction with the conveyance, transfer or
encumbrance of the Unit. Parking space(s) are separate and
distinct from garages, which are considered a part of the
owner of the ALF cannot colonize the Limited Common Elements.
Unless the parking spaces the ALF, owner is trying to takeover
originally belonged to the ALF and were "loaned" to
the condo unit owners, we can find no provision in the law or
the excerpt you provided from the Declaration to allow such to
condominium complex was originally built as a boutique luxury
hotel in the 1960s. In 2005 it was converted to midrise
condominiums without any major structural changes. Because of
the high maintenance costs per unit, and increased value of
its large parcel of land, the board is investigating the
feasibly of demolishing the entire structure and replacing it
with high rise condominiums, a hotel, and convention space.
The condo board is developing a Request for Proposal. If the
board decides to move forward with this plan what percentage
of the unit owners would need to approve it?
to 718.117Florida Statutes, the affirmative vote of not less
than 80% of the Unit Owners is required for a successful plan
of termination of the condominium, which would be required if
the board wants to move forward with a complete demolition and
rebuild. The plan of termination is required to separately
state the valuation of the common elements and assets of the
association as well as the value of each unit in the
condominium. In the event the condominium suffers property
damage as a result of a catastrophic event and the costs to
restore exceed the fair market value of the units, an optional
method to terminate requires only the affirmative vote of a
majority of the unit owners.
have put offer to one of the condominium for buying. I have
approval from one of the very good lenders for buying home,
which is conventional home loan. it is approved in a such way
that i can pay 3% down and remaining will be funded by lender.
I also provided the address and location of condominium to
lenders and lender does not have any issue.
owner is also ok to sell house with 3% down. But now
condominium has objection that i should pay 20 to 25% down
payment. It is association requirement. I do have stable job
and very good credit score. Is it mandatory or can i buy that
condominium with 3% down. Due to which i have postpone the
decision of buying the apartment.
Declaration of Condominium must contain the authority for your
condominium to approve sales if it wants to have a requirement
for a down payment being equal or greater than a specific
percentage of the purchase price. If there is not a provision
in the Declaration for the Association to require a specific
percentage down payment you may be able to challenge the
requirement. The Association may be required to purchase a
unit if it denies a sale. Therefore you will need to request
or obtain a copy of the governing documents, specifically the
Declaration to determine if the Association is within its
right to require a specific percentage down payment.
HOA is in the process of setting a meeting to vote on a
corporate resolution to allow online voting in our next
election (May 2017).Our governing documents stipulate clearly
that our voting must be done by "secret written
ballot". Since the word "written" is in our
governing documents, do we need to amend the documents prior
to venturing in to online voting?
you are not required to amend your governing documents to vote
in an election for directors pursuant to a provision in
Florida Statute, Chapter 718.
may elect to conduct elections and other membership votes
through an internet-based online voting system according to
the following terms:
Each member voting electronically must consent, in writing, to
The Association must provide each member with a method to:
Authenticate the member’s identity to the online voting
Transmit an electronic ballot for board elections to the
electronic voting system that ensures the secrecy and
integrity of each ballot.
Verify the authenticity of receipts sent from the electronic
Confirm, at least 14 days before the voting deadline that the
member’s electronic device can successfully communicate with
the online voting system.
addition, the condominium association’s online voting system
must be able to:
Authenticate the member’s identity.
Authenticate the validity of each electronic vote to ensure
that the vote is not altered in transit.
Transmit a receipt from the online voting system to each
member who casts an electronic vote.
Permanently separate any authentication or identifying
information from an electronic ballot for board elections,
rendering it impossible to tie a ballot to a specific member.
Store and keep electronic ballots accessible to election
officials for recount, inspection, and review purposes.
member voting electronically is counted as being in attendance
at the meeting for purposes of determining a quorum, and for
condominium associations, a quorum established based on
members voting electronically is only limited to the issue
specifically identified in the electronic vote.
am the Treasurer on the board of a condo association in S.
Florida. Our building is currently at maximum rental capacity
(25%) and we’re having difficulty determining who gets the
next "right to rent". The Condo currently has
certain rental restrictions in the Declarations and Rules,
namely these: 1.Owners are PROHIBITED from renting or leasing
their condominium unit for a period of time not less than
twenty-four (24) months from date of purchase. 2. At no time
will more than twenty-five percent (25%) of the condominium
units in the Condominium. i.e. eight (8) units, be leased or
rented at any given time. 3. Leases for a one (1) year period
will be the only permitted lease period. As I’m sure you’re
aware, the rental business in South Florida is
"booming" and for the first time in my experience
(16 years), the Condo is currently at the maximum
"rental" capacity of 8 units. The Association is
trying to figure out how to handle the "next" rental
unit eligibility. Multiple owners are currently interested in
renting out their unit. When the next unit is sold, or a
rental unit returns to "owner occupied", how do we
determine who becomes eligible to rent their unit? The
Association has considered the following, but we don’t know
the legality of each: Create a rental que ordered by date of
owner expressing interest to rent. Create a rental que ordered
by purchase date of interested owners. Lottery of interested
owners. Do you know how other condominiums handle this
situation? Should we modify our Declarations and Rules to
reflect how we handle this situation? Thank you.
should consult your association attorney for advice as to
whether or not your governing documents should be amended. One
method for determining the next owner that may offer a unit
for rental can be to create a waiting list. When a unit owner
expresses an interest in renting they can be added to the
waiting list and when a unit drops out of the rental program
or is sold the next unit owner on the list is advised he or
she can rent the unit. If a unit that is rented is sold
– the lease is not renewed and the unit owner must comply
with the 24 month waiting period upon expiration of the lease.
Any change of lessee should require that unit to move to the
bottom of the waiting list.
governing documents state no unit owner may modify the outside
of any of our 44 buildings. A unit owner wanted to modify his
back room and take out a window and replace with a smaller
window (which does not match any other in the complex) plus
add a smaller back door. The board let them do the re-modeling
(even though it is against our by-laws) saying in previous
years several owners did this. Do not know if it was with
Board approval or not. Many of us feel no matter what happened
in the past it is against the by-laws and should not have been
the association has not been enforcing the documents for a
period of time; they may be unable to enforce them against
owners that have violated them in the past. Usually the
association is "estopped" from pursuing violations
that have existed for a period of time that is not within the
statute of limitations. If the association has not been
enforcing its governing documents for a period of time in
excess the statute of limitations which is usually five years,
they may be "estopped" from enforcing that provision
until they cause the owners to be on notice that going forward
the covenants within the governing documents will be enforced.
Your association attorney can assist you in preparing a letter
to the membership commonly referred to as a "Clean the
Slate" letter. After the letter is sent to the membership
the board will have the authority to enforce the provision
going forward and to require compliance from some owners that
may have previously violated the provision.
son just started renting a condo/co-op unit. One of the
requirements was to get a parking pass, which is
understandable. When he went to get the parking pass he was
told that in order to get the parking pass he needed to change
his license and registration to the rental units address.
Since this is a rental he has a one year lease - so he may or
may not have the option to rent the same unit next year. Is it
legal to require him to change the address on his license and
registration in order to obtain a parking pass. His license is
still showing my address, his original home address. The
condo/co-op is about two miles from my home. If he needs to
change his address then he will have to change his insurance
info, his passport info, his business travel ID, His health
insurance address, etc. ( for security reasons his mail comes
here to my house)
Thank you for your assistance.
the fact that the condominium has the authority to require
that only residents are issued parking passes, Florida law
requires that drivers license addresses are updated within 30
days of moving. Your son is not living with you and his
residency is not considered temporary because he only has a
one year lease. If your son is a student enrolled in school
full-time he can continue to use your address as his permanent
address, otherwise he is required to provide his actual
address to the Department of Motor Vehicles. The condominium
can require that his driver’s license properly reflects his
residence in the condo as his address before issuing the
a homeowner in a 108 unit condominium of which many of the
residents are seniors, some with disabilities. Do designated
meeting sites need to be ADA accessible?
Americans with Disabilities Act ("ADA") covers a
variety of prohibited activities in regard to discrimination
against disabled persons. Title III, the ADA section most
likely to apply to community associations, prohibits
discrimination on the basis of a disability by a private
entity in a place of public accommodation. "Public
Accommodation" is defined in the ADA by listing 12 types
of entities that are considered places of public
accommodation. Residential facilities are NOT listed as one of
the 12 types of entities. Therefore Common Areas of a
homeowners association and Common Elements of a condominium,
such as the clubhouse or the pool, are not covered by Title
III of the ADA where use is restricted exclusively to
residents and their guests and not open to the public. The
exemption from the ADA would not apply if the association were
to open the Common Areas, such as the clubhouse or pool, to
use by the general public who are not residents or guests of
residents. For example, if the association rents the clubhouse
or the pool to the general public or to an entity that has the
exclusive use of the common area such as the tennis courts for
the purpose of providing instruction to non-members as well as
members. This does not mean the association is exempt from
making a reasonable accommodation under the Florida and
Federal Fair Housing acts. The difference is in who has to pay
for the accommodation. If an alteration or accommodation is
required by the ADA the association would be required to pay
for the accommodation. If the association is required to make
a reasonable accommodation under the Florida and Fair Housing
Acts, the person requesting the accommodation is required to
pay for the alteration.
Florida condo board wants to write rules regulating rentals.
Specifically, they are insisting that:
want to have the ability to deny renters for any reason, be it
background check or poor credit.
The Bylaws state they are allowed to write rules so they feel
this grants their authority.
I understand their intent, I am telling them they do not have
the authority to regulate rentals in this manner because the
bylaws state: If all assessments are paid up to date, a
unit owner may rent or lease such owners unit without further
approval. However, the unit owner renting or leasing such
owners’ unit shall promptly notify the association or
management firm of each renter and the term of such rental or
lease. I’ve told the board that an amendment to the
bylaws is required before they can put these rules in place.
the board simply write regulations regarding rentals into
are correct – the board cannot make a rule that modifies the
governing documents. In order to understand the rationale for
this it is important to note the hierarchy of governing
authority for community associations. It is, in order of
greatest authority to least authority, 1) Federal Law, 2)
State Law, 3) Local Ordinances, 4) Declaration of Covenants,
5) Articles of Incorporation, 6) Bylaws, 7) Rules and
Regulations and 8) Robert’s Rules of Order. An association
cannot amend its governing documents or create a rule if the
amendment or rule will conflict with a provision or a law that
has a higher authority.
your question references the Bylaws as the governing
authority, it is actually the Declaration which contains
language or should contain language regarding sales and
leases. The Declaration is the only document that must contain
a provision authorizing the board to conduct approvals of
sales and leases; which would include the authority to request
credit or background checks. Very often boards are confused
because they have the authority to promulgate rules granted in
the Declaration or the Bylaws and it is thought that a rule
can be promulgated to authorize the board to approve sales or
leases. In fact – very often the Declaration contains the
precise wording that illustrates why the board cannot
promulgate such a rule. The following is often found on the
first page of the Declaration following the Whereas clauses:
"Now Therefore, Declarant hereby declares that the real
property described in Exhibit A is and shall be held,
transferred sold, conveyed, used and occupied subject to the
covenants, conditions and restrictions herein set forth."
This language restricts the Association from any action to
approve, investigate or interview a prospective resident
unless the authority is specifically granted within the
Declaration. If the Board wants to have such authority and it
is not already granted in the Declaration, it would require a
vote of the membership to amend the Declaration to permit them
to seek to approve of sales and leases.
a condominium permitted to make a charitable donation on
behalf of the community with funds from its operating account?
condominium is not permitted to spend funds from its operating
account unless it is for a common expense as defined by the
governing documents. Therefore, unless the governing documents
authorize charitable donations as a common expense the
condominium is not permitted to make such a donation from the
HOA board voted to resurface the exposed common areas and
passageways in our condo. They intend to do one floor at a
time. They claim that it will require the entire floor to be
closed to owners for a minimum of 5 days. This is my primary
residence. The HOA claims it can legally deny owners access to
their units for the 5-day (possibility longer) period. Is that
really the case? Thank you.
board has the fiduciary duty to maintain the common areas. If
the maintenance is required and if there is not any other
alternative to denying access to you unit, the board has the
right to proceed. It would be prudent for the board to
determine the exact time required to complete the maintenance
and or to hire a company to expedite the repairs to permit you
access sooner. Whether the Association is required to
compensate you for your living expenses while denied access
would have to be addressed by reading your Declaration. There
are arbitration decisions that may require the association to
absorb the costs for relocation provided there is an
incidental damage clause in the Declaration that addresses the
Florida condominium is looking to pass an amendment regulating
rental rights. I plan to vote against this amendment. I
understand that 718.110(13) of the code will retain my right
to rent. There are some interesting parts to the proposed
amendment beyond basics such as requirement for board approval
of tenant and requiring lease. Also, want to require a
specific lease. Are these types of restriction covered under
718.110(13) as not valid?
the Board proposes an amendment to limit or restrict your
right to rent your unit and it is passed by the unit owners
you must vote yes for the amendment in order to be subject to
the restrictions. The board can still seek to bind you to an
amendment to require background checks or board approval of
tenants whether your vote no or do not vote.
is the process for requiring a Unit to install Hurricane Glass
and can the board disallow the use of Hurricane Shutters once
the Hurricane Glass is installed.
order for the Board to require all unit owners to install
impact / hurricane glass it must have the authority to do so
granted it in the declaration either as originally recorded or
as amended. Many associations have successfully passed
amendments to their governing documents to require all unit
owners to install hurricane glass. The hurricane glass offers
protection and the association will realize a savings on the
windstorm insurance. The association can require that any
non-code compliant shutters are not reinstalled and many glass
manufacturers warn against installing hurricane shutters over
impact glass doors and windows. Therefore many boards do not
permit a unit owner to compromise the wind protection by
installing shutters over hurricane glass. The manufacturer and
installer of the hurricane glass would be a good source to
inquire as to whether or not hurricane shutters are
recommended in conjunction with hurricane glass.
292-unit Florida condo has several ’speed bumps’ that were
installed by the developer before the association was turned
over to the owners over 15-years ago. Our president would like
to install more of these ’speed bumps’ at the dismay of
the owners. He contends that this decision can be made at the
board level, thus foregoing the need for a 75% owner voting
approval. He bases this on some obscure case law and then
concludes his argument with something like ‘every time that
I call the State, they will not give me a direct answer, thus
it defaults to a BOD decision’. The owners that I know
contend that this installation is a material alteration of the
common elements and would require a 75% owner approval vote in
accordance with our declaration. It would seem to me that
something like this would be pretty fundamental in either the
Florida Condo Statutes or Florida case law, i.e. I would think
that the installation of ’speed bumps’ has been discussed
many times and has some type of consistent remedy. Can you
help me with this one?
additional speed bumps would be a material alteration or
substantial addition to the property or the common elements
requiring a vote of the owners, provided the authority to add
speed bumps is not already granted in your governing
documents. The state is not going to interpret your governing
documents and perhaps that is why the board is unable to get
an answer. The board takes on a tremendous amount of
responsibility as volunteers and it perplexes me why they fail
to rely on the advice of professionals when it comes to the
business of operating the association.
board is trying to say they have authority to assign and
reassign parking places in our condominium. Below is state
statutes and language from our declaration and old bylaws and
new bylaws in 1986. Several owners have told board that our
parking places are Limited Common Elements (LCE) and cannot be
transferred. Our docs call them LCE’s and then the bylaws
says they are not LCE’s. Wouldn’t the Declaration
supersede? And if not the 1986 bylaw changes it to the parking
place transfers with the sale. Exact language of The 2016
Florida Statutes 718.103 Definitions. — As used in this
chapter, the term:(19) "Limited common elements"
means those common elements which are reserved for the use of
a certain unit or units to the exclusion of all other units, as
specified in the declaration. Exact language of our
ABTR Declaration; Arlington by the River, June 30, 1983;
Declaration of Condominium; Definitions 2.10 Limited Common
Elements means and includes those Common Elements which are
reserved herein, or assigned, or granted separately herefrom,
for the use of a certain Unit or Units to the exclusion of
other Units, consisting of (a) to each Unit, the balcony,
porch and/or deck appurtenant thereto and other equipment
and/or fixtures, if any, attached, affixed or contiguous to
the exterior of and serving only that Unit; and (b) to each
Unit, the right of exclusive use of the assigned parking space
in the parking lot serving that Unit; and (c)…….go on
to talk about second phase which was never built. OLD
BY-LAW 1983 By-Laws Article LX Miscellaneous, Section 7.
The Board is authorized to assign parking spaces to unit
owners on a first come, first basis. Assigned parking spaces
shall not be limited common elements and the right to use an
assigned space shall not be transferable to a new owner upon
sale of a unit, however each unit shall be entitled to at
least one assigned parking space; NEW BY-LAW 1986. The
above By-Law was changed in the Amendment to the Declarations
in 1986.Section 7, Assignment of Parking Spaces. The Board is
authorized to assign parking spaces to unit owners on a first
come, first basis. Assigned parking spaces shall be
transferable to the new owner upon the sale of a unit.
Each unit shall be assigned one parking space. Oversize
vehicles, boats and trailers shall be parked only in areas
designated by the Board of Directors, furthermore the Board
shall determine what is classified as an oversized vehicle.
Board does not have the authority to reassign the Limited
Common Elements assigned at inception unless that authority is
specifically granted in the Declaration. If the parking spaces
are not mentioned in the Declaration and defined as Limited
Common Elements, then they are in fact Common Elements.
Pursuant to the information you provided, your parking spaces
are mentioned in the Declaration and are identified as Limited
Common Elements assigned or granted separately. It is highly
unlikely given the information you provided, that your board
has the authority to reassign these parking spaces. There is a
Florida Court Case (Juno by the Sea North Condominium vs
Manfedonia; Fla.App., 397 So.2d 297) that addresses this
issue. In this case it was held that the board did not have
the authority to "reassign" limited common element
parking spaces. Unfortunately, you will need to review all of
your governing documents and perhaps consult an attorney to
determine what the specifics are in the case of your parking
spaces, as this answer is not intended to be a legal opinion
regarding the specifics of your situation.
live in a condominium in Florida that is a three story
building. We have been told we have to vote before December
2016 if we want to avoid having to retrofit to install fire
sprinklers in the Units. Please advise as to how we accomplish
this so we can proceed. There are so many conflicting articles
about this subject we don’t know where to turn.
topic has been hotly debated recently and unfortunately a lot
of misinformation has been circulated. It seems many are
turning to the Division of Condominiums for the answer when in
fact it is the State Fire Marshall who has the authority and
the expertise to address this issue. In fact, the State Fire
Marshall recently issued a Declaratory Statement (Case No.:
189152-16-DS) that addresses the issues regarding retrofitting
for sprinklers or implementing an Engineered Life Safety
and foremost – There is no state or local fire code
requirement that all existing mid or low rise
residential occupancies must retrofit fire sprinklers in any
of the 50 states including Florida. The provision of the Fire
Code requiring retrofitting for sprinklers or Engineered Life
Safety Systems applies only to buildings classified as
high-rise residential occupancies which are usually 75 feet or
greater in height.
is a provision of the Florida Fire Protection Code (FFPC)
which allows high-rise residential occupancies to
retrofit fire sprinklers or to implement an Engineered Life
Safety System which may include common area sprinklers as well
as smoke removal systems, pressurized stairways and other
features as cited in 22.214.171.124.4, of the Life Safety Code. It
is clear in section 126.96.36.199 of the Life Safety Code that
only high-rise residential occupancies must retrofit
for fire sprinklers or in the alternative must comply with and
implement an Engineered Life Safety System.
718.112 (2) (l) was first implemented, it permitted a
high-rise condominium to vote to opt out of complying with
either retrofitting fire sprinklers or implementing an
Engineered Life Safety System. This original version of the
law also expressly excluded low-rise and mid-rise buildings
even though the FFPC did not require a low-rise or a mid-rise
building to comply with either retrofitting fire sprinklers or
implementing an Engineered Life Safety System.
was some confusion created when 718.112 (2) (l) was revised in
2010, as it removed the reference to low-rise and mid-rise
buildings and some have incorrectly interpreted this to mean
that low-rise and mid-rise buildings could not opt out or to
debate whether or not the provisions in 718.112 (2) (l)
applied to low-rise and mid-rise buildings. This debate can be
put to rest because there is no state or local fire code
requirement that any existing mid or low rise
residential occupancies must retrofit fire sprinklers in any
of the 50 states including Florida.
add to the confusion, the revised version of 718.112 (2) (l)
removed the provision that allowed high rise residential
condominiums to opt out of implementing the Engineered Life
Safety System if they also were voting to opt out of
retrofitting for sprinklers. In fact, as a result of the 2010
revisions to the law, if a high rise condominium votes to opt
out of retrofitting for fire sprinklers, it is in fact opting
in to the requirement that it implement an Engineered Life
Safety System. It is imperative that prior to voting to opt
out of retrofitting for sprinklers, a condominium should
consult with a fire protection engineer to get an estimate of
the cost to implementing an Engineered Life Safety System,
which can be considerable more expensive to implement then
retrofitting for fire sprinklers.
facts are as follows:
It is a fact that a low-rise or mid-rise building is not
required to retrofit for fire sprinklers or implement an
Engineered Life Safety System under any fire code in any of
the 50 states.
It is a fact that high-rise residential buildings that have
exits directly from the units to an outdoor corridor are not
required to retrofit for fire sprinklers or to implement an
Engineered Life Safety System.
It is a fact that high-rise residential buildings that have
exits from the units into an indoor corridor are required to
either retrofit for fire sprinklers or to implement an
Engineered Life Safety System.
It is a fact that a high rise condominium in Florida can, by
the vote of the unit owners, opt out of retrofitting for fire
sprinklers because it is granted the authority to do so by
718.112 (2) (l).
It is a fact that if a high rise condominium in Florida votes
to opt out of retrofitting for fire sprinklers pursuant to the
provisions of 718.112 (2) (l), the condominium must comply by
implementing an Engineered Life Safety System.
It is highly recommended that only a Fire Protection Engineer
should be hired to implement an Engineered Life Safety System.
Before voting to opt out of retrofitting for sprinklers, a
cost estimate for implementing the Engineered Life Safety
System should be determined. It may be determined that it is
more cost effective to retrofit for sprinklers.
reality the fire code has changed several times in the last 30
years and many high rise buildings were required to install
fire sprinklers when they were built and / or to comply with
fire code requirements that were not in place in the earlier
years. The final authority on this subject is the State Fire
Marshall. We would encourage those that are still questioning
what they are required to do in order to comply with the
provisions of the Fire Code and 718.112 (2) (l) to contact the
local municipalities fire official if they are in doubt as to
the requirements as they relate to a specific residential
building. The local fire officials have already identified
which buildings in the municipality that are not in
are members in our association that rent the units they own on
a short-term basis. The short-term renters are causing damage
and are a nuisance to the unit owners that live in the
association full-time. Can a condominium association charge
unit owners that cost the association more money for repairs
and security more in assessments to offset the additional
costs the rentals cause the building? Is there any way to stop
the owners from allowing short-term rentals?
owners pay assessments pursuant to the proportionate share
each unit is assigned in the Declaration. A vote of 100% of
the unit owners is required to modify the proportionate share
each owner pays unless there is a provision in the declaration
that allows a modification. Rentals are controlled by the
provisions in the declaration that address a unit owners
ability to lease a unit. Short term rentals are often
prohibited by the declaration. Short term or transient rentals
may be further controlled by ordinances enacted by the
municipalities where the properties are located. Most
municipalities require a unit owner that causes a unit to be
rented on a transient basis to register as a business. Most
declarations strictly prohibit a unit owner from using the
unit for a commercial purpose. Even if rentals are permitted
– any rental that can be classified as a transient rental
may be prohibited because such a rental is a commercial use.
The specific issues you mention are the logical reasons that
such transient rentals should be prohibited or controlled.
condo documents state that a majority vote of the of members
in person or by proxy is required to pass a material
alteration. I just read that the Florida statutes require 75%,
unless a higher percentage is required in our documents. I
thought I read somewhere that condo documents could require a
higher percentage but not a lower amount is this correct?
Question: Is our percentage of majority legal? Or do we need
the 75%?Thank you for any help you can give me.
provision in the Florida Statutes you are referring to is 718.113
(2)(a) and it states as follows: Except
as otherwise provided in this section, 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. This paragraph is
intended to clarify existing law and applies to associations
existing on October 1, 2008.
provision you reference defers to the requirements of the
declaration first and if there is not such a provision in the
declaration the law requires a vote of 75% to approve a
material alteration. There is not anything in the law that
requires the approval of more than a majority of the unit
owners if the unit owners if the provision in your declaration
requires a majority vote.
reserves are being funded in an association, can the board or
owners vote to "Suspend funding" of those reserves
in the middle of the budget year?
the owners may vote to suspend funding of the reserves
provided the board holds a budget meeting for the purpose of
voting to not fund the reserves pursuant to all of the
requirements of the documents and Florida Statute 718. Florida
statute 718 requires 14 days’ notice mailed (along with a
copy of the proposed budget) and posted, unless documents
require a longer time period. The decision to suspend funding
must be ratified by the majority of those present in person or
by proxy provided there is a quorum.
it against the law to indicate a pool rule for children under
3 or with diapers to restrained from using the pool? I was
told that it is discriminatory and also is on many other condo
rules. Would greatly appreciate your comments.
to the FLORIDA ADMINISTRATIVE CODE CHAPTER 64E-9 —
SWIMMING POOLS AND BATHING PLACES: Swim diapers are
recommended for use by children that are not toilet trained.
Persons that are ill with diarrhea cannot enter the pool.
Therefore we would advise that children under the age of 3
that are wearing swim diapers should be allowed to use the
the law says a director abandons their post if they have been
over 90 days delinquent in any monies owed the association, it
doesn’t define abandonment. Can you clarify if abandonment
is permanent or just for the director’s term? Also, while
the remaining directors must fill the abandoned position
according to the law, what happens when there are only two
directors left (Board has 3 in total). Would the two be
considered a quorum and do they appoint another owner to the
Board or should they ask for those willing to run and have a
vote. Also, if the person who abandoned their post now pays
the delinquent amount can they reclaim their position
(abandonment means permanent to me). If that person pays their
past due, can their spouse just go into the position if the
director that is over 90 days delinquent is ineligible to
serve for the remainder of the term. This would not prevent
the person from running for the board in the future provided
the person is no longer delinquent. The person that has
abandoned their position may not merely pay the delinquency to
remain on the board. The bylaws should be reviewed to
determine the method for filling the vacancy. The board could
appoint the spouse even though they were technically
ineligible at the time of the abandonment due to the
delinquency since he or she was a co-owner of the unit with
the delinquency. Finally, if the delinquency has been cured
and the bylaws permit the board to fill a vacancy, there is
nothing in the law preventing the appointment of the board
member that was delinquent.
a recent board meeting our president resigned and there were
no nominations for an acting president or another board member
nominated to take his place. It was tabled for the next
meeting. Our next meeting is at the end of June and some of
the board member will be on vacation, so I’m not sure if
there will be a president anytime soon. I thought a condo
board had to be run with all it officers especially a
president. Please advise.
the absence of the president the vice president assumes the
role of president. The board may conduct business provided
there are still enough members on the board to establish a
quorum. If there are not enough members to establish a quorum
the board should proceed to either appoint a member to serve
unless the bylaws require an election.
an amendment to the declaration from 1996 be invalidated if
the records from 1996 do not exist and there is no way to
verify that he required vote was achieved.
the amendment cannot be invalidated as the statute of
limitations requires that a challenge to the validity of the
vote for the amendment must be brought with the five year
statute of limitations.
you for helping Florida Condo owners with your expertise. Our
Condo in Broward County is voting for a major restoration and
renovation, changing many architectural details of the
complex. They have sent out a written consent form with a list
of 12 changes and I am in favor of all but one. I would like
to cross off that one item and state I am agreeing YES on all
other 11 items. Can I do this or do I have to agree to all? We
have 10 days to return the consent agreement.
the ballot requires only one vote for all twelve items you
must vote no if you want to disapprove any of the items. If
you attempted to vote no on only one of the items presented
the board would have no choice but to either disregard your
vote or tally it as no.
you borrow from a reserve account for an emergency if the
money is replaced before the end of a year?
unless you get a vote of the members. This is because in a
condominium a vote of the members is required in order to use
reserve funds or other than its stated purpose. This includes
borrowing from the reserves. In fact, pursuant to the
administrative code, section 61B-22.005, a condominium is
required to deposit reserve funds into the reserve accounts as
the money is received. Therefore, as the assessments are
collected the reserve funds must be placed in the reserve
accounts. Reserves included in the adopted budget are common
expenses and must be fully funded unless properly waived or
reduced. Reserves shall be funded in at least the same
frequency that assessments are due from the unit owners (e.g.,
monthly or quarterly).
required by Section 718.112(2)(f), Florida Statutes, for
capital expenditures and deferred maintenance including
roofing, painting, paving, and any other item for which the
deferred maintenance expense or replacement cost exceeds
$10,000 shall be included in the budget. For the purpose of
determining whether the deferred maintenance expense or
replacement cost of an item exceeds $10,000, the association
may consider each asset of the association separately.
Alternatively, the association may group similar or related
assets together. For example, an association responsible for
the maintenance of two swimming pools, each of which will
separately require $6,000 of total deferred maintenance, may
establish a pool reserve, but is not required to do so.
condo is faced with replacing our aged cast-iron piping. The
pipes are located in a chase created by opposing unit walls.
Only one wall needs to be opened to do the work. Our docs only
require the association to replace the wall to a "paint
ready finish", regardless of any tile or cabinetry that
may need to be removed. My question is, the unit who’s wall
needs to be removed will incur an individual cost to replace
anything beyond the wall surface, while the abutting unit
owner will not: How does the association determine who’s
wall gets removed since the cost to the association would be
the same for either wall? Our docs are silent on the issue of
whose wall gets removed for repairs.
is a question that needs to be answered by the general legal
counsel for the association. Generally speaking – the
provision that relates to the Associations responsibilities
and the owners responsibility for repairs within a unit
relates to a casualty loss not a necessary repair. More than
likely the Association is responsibly for the repairs needed
to the walls since it is necessitated by a maintenance repair.
am currently a board member of a 5 board member condo that has
meetings under the guise of "personnel issues"
therefore not open to the members. The meetings are not
noticed and they do not record minutes of these "closed
meetings". The board recently voted under this guise to
replace the current management company. I am concerned that
this decision should have been duly noticed to the members. I
am concerned that this decision may have violated State
Statute but have been out voted by the other board members.
The members were notified by the Board President of the change
in management via email and we are having numerous concerns
and complaints from the members that they did not know about
this change as they were never notified of a board meeting.
What should I do??
is important to note that every meeting, whether it is a
closed board meeting or a board meeting open to unit owners,
must be posted. A meeting regarding the selection of a
management company is not a personnel meeting, it is a meeting
to discuss a contract. A personnel meeting deals with specific
issues regarding a specific employee not contract issues with
a management company. The board should consult with its legal
counsel for advice as to clarification of this often
misinterpreted provision. It was not the intent of the law
that the open meeting requirement be circumvented by the board
to discuss contract issues. The only time the board can
prevent the membership from attending a meeting is when the
board is meeting with legal counsel regarding threatened or
pending litigation or when the board is addressing a specific
employee’s personnel issue. If the board refuses to address
your concerns or to seek an opinion from counsel a request for
clarification to the Division of Condominiums may be in order.
Condo Board has voted on and approved a Special Assessment PRIOR
to having a Fully Executed Contract (reviewed or signed
off by the Condo Attorney) for a $300,000.- Lobby Renovation
came first - the chicken or the egg. The project cannot be
implemented until the contract is signed but the contract can’t
be signed until the board is sure it will be funded. The real
issue may be whether the board has the authority to approve a
material alteration and or a special assessment without the
vote of the owners. The governing documents, specifically the
declaration would have to be reviewed before making that
determination. Pursuant to §718.113, there shall be no
material alteration or substantial additions to the common
elements except in a manner provided in the declaration. If
the declaration is silent 75% of the total voting interests
must approve the alteration. If your board is acting
responsibly they will seek the advice of the association
attorney prior to proceeding with the project.
Ms. Konyk, Thank you for helping Florida condo owners with
your expertise. Our condo in Broward County is voting for a
major restoration and renovation, changing many architectural
details of the complex. They have sent out a written consent
form with a list of 12 changes and I am in favor of all but
one. I would like to cross off that one item and state I am
agreeing YES on all other 11 items. Can I do this or do I have
to agree to all? We have 10 days to return the consent
your board is requesting that you vote for something that
usually requires a vote to be conducted at a meeting – the
procedure that it is following is likely written consent in
lieu of a meeting, which allows the board to collect votes for
ninety days after it receives the first vote. If the board
presented the project as one vote for all 12 items, then you
cannot vote for the items individually. If you were to return
a ballot advising you approved all but one of the items –
your vote would be void. If the project fails to secure the
necessary votes in the affirmative the board cannot proceed
with the renovation.
HOA president has just sold his condo here in Fl., he
maintains that he can continue on this board despite being a
non-owner. Is this correct?
the governing documents permit service on the board by
non-members, this board member would be permitted to remain on
the board. The provision for non-members to serve on the board
is sometimes specific, in that it identifies a non-member
spouse of an owner as being eligible or sometimes it is
broadly written and it would make anyone eligible to serve on
the board. You have to refer to your governing documents to
see if this is permitted.
condo just informed me that the key box was broken into and my
key was taken. They advised me to have my locks changed and to
provide them with a new key for emergencies and access. My
concern is the cost to change the locks and my husband often
arrives in Florida and has a board member let him in to the
condo. What are my obligations?
under the statute, must be granted if it is necessary to enter
a unit for repairs to the common area or to remediate a
situation that may be impacting another unit – such as
running water. If the governing documents so provide, the unit
owner is required to give the association a key to the unit.
Access is not for the convenience of a unit owner who is
locked out nor is it to provide entry upon arrival to the
unit. If the association is entrusted with keys to the unit
the keys should be secured and the board members should not
have unfettered access to the keys. There are safes available
for the purpose of securing keys and management should have
access to the combination or should retain the key to safe.
Board members are volunteers and neighbors and as such they
should not accept the responsibility of the safekeeping of the
keys to units.
have recently been elected the president of our 40 unit
condominium and are contemplating a number of projects which
would be considered a "material alteration." In the
past, I have been told that many of the older residents simply
fail to vote rather than rejecting these
improvements/alterations which achieve the result of defeating
the projects without actively voting against the projects. If
this is the case, is there any remedy to the 75% approval?;
would a statement to the effect of "failure to cast a yes
or no vote will relinquish your vote to a decision by the
Board of Directors on this matter.?"
your Declaration before assuming a vote is required. There may
be a lower percentage required to pass a material alteration
or in some instances a vote may not be required. Additionally,
if there is a change in the building code requiring a
modification, the vote of the owners may not be required.
Consult with your general legal counsel to determine when a
vote is required. In regards to your inquiry, you may not
require that a non-vote is anything but a non-vote. Therefore
you will be required to secure the required percentage of
affirmative votes in order to proceed with a project that
requires the vote of the owners.
have a POA and tried to make a change. We need 75% to make a
change. 75% of our homeowners equal 20.25. Do we round down to
20 members needed or up to 21. Thank you.
round up, otherwise you will not have achieved the minimum
required of 75%.
condo complex was built in the mid-70s. Reserves have been
historically kept for the following items: Roof, Painting,
Pavement and Washer-Dryers. While many other property
components would cost more than $10,000 to replace or repair,
no reserves have been set up for them. For example, elevators,
swimming pool, clubhouse, plumbing. These are all now 40 years
old and will need to be replaced within the next few years.
Also, owners are not asked to vote annually on whether or not
they want to waive funding the reserves. That said, some board
members have been known to claim that our reserves are fully
funded. Should our Board not be creating new reserves for
those items that will cost more than $10,000 to replace or
repair and then ask owners on an annual basis whether they
want to waive funding the reserve? Also, when waiving
reserves, can owners do it on a line by line basis or must it
718.112(2)(f) of the Florida Statutes and Rule 61B-22.005 of
the Florida Administrative Code require ALL Florida
condominium associations to fund reserve accounts for deferred
property maintenance and replacement projects. Specifically, a
reserve account must be established for roofing replacement,
property painting, asphalt paving, and any other project that
has an anticipated cost of greater than $10,000.The membership
is not required to vote to fund reserves – but it is
required to vote annually to waive or partially fund reserves.
Two budgets should be presented, one with reserves fully
funded and one with the reserves either partially funded or
waived. The board makes the decision to present the vote to
waive reserves and as such they can suggest the membership
vote to approve funding reserves only for specific items or
for partial funding of the reserves. Ultimately it is the
membership that approves waiving or partial funding of the
reserves by a majority vote each year. Reserve and operating
funds may not be commingled for more than 30 days from the
date of receipt of a maintenance fee payment. As such, if an
association receives maintenance fees monthly or quarterly,
they must contribute the appropriate amount to their reserve
funds monthly or quarterly.
our condo association regularly interviews new owners after a
background and credit check. Do we have the right to refuse
anyone due to criminal record? Where can I find the
documentation for this problem?
the declaration contains provisions for approval by the
association of sales and or leases, the board of director can
refuse a prospective occupant because of a criminal background
provided the board is consistent in its review. The board
should adopt a criteria that it uses consistently when
reviewing background and criminal checks. The board cannot
refuse occupancy by person that is a member of a protected
have a couple of "energetic" condo unit owners who
constantly email the CAM and Board of Directors with
questions, comments, complaints and observations. The tone and
content of the emails are usually inflammatory, insinuating
and non-value added. Is the CAM or the Board obligated to
answer the emails? I couldn’t find any Florida statutes that
addressed this. Thank-you.
business of the Association should be conducted at a properly
noticed meeting and an individual board member should never
answer questions on behalf of the board. These email inquiries
should be discouraged and the board should adopt reasonable
rules for communication and inquires. The rules can require
that any inquires must be in writing and delivered via
certified mail. The rules can also limit the number of
inquiries a resident can make in a month. After implementation
of the rules for inquires the board should provide the
residents with the rules and advise that it will limit all
email communication. No one is required to be abused by a
resident who uses emails to intimidate or insult the board or
a condo rule has been violated for over 5 years and not
enforced, does that condo rule become waived and is it no
rule that has not been enforced cannot be enforced until the
board sends a "clean the slate" letter advising the
rule will be enforced in the future. The letter would serve to
put the community on notice of the issue and to allow those
that cannot conform to be grandfathered. An example for "grandfathering"
would be a unit owner that has two dogs in a condominium whose
declaration only permits one dog. If the board failed to
enforce this rule and takes steps to correct the failure –
the unit owner with two dogs would be permitted to keep both
until one of the dogs no longer resides in the unit.
the beginning of an open meeting of our condominium’s board
of directors, the president stated that meeting notices were
posted less than the statutory minimum of 48 hours and that
therefore the meeting was not official and would be just for
informal discussion. No business was allowed to be voted on
because of the insufficiency of notice.
the next meeting, minutes were read and the board voted to
accept the minutes as read over the objection of a unit owner
who raised a point of order that minutes may only be accepted
from meetings that have been properly noticed to the unit
owners and have a quorum of directors.
minutes state that the president said that the policy of the
condo giving holiday gifts to the management company will
continue as was done for the past 3 years and "the board
agreed," even though no vote was taken or recorded in
these unofficial minutes.
these minutes legal since the meeting was declared at its
outset to be unofficial?
minutes state that "the board agreed" without
recording a vote?
there was not a quorum of the board – there was not a
meeting. If there is not a meeting no business can be
conducted. Therefore there should not be any minutes. There is
a provision in the law that permits a board to conduct a
meeting by written consent in lieu of a meeting. Pursuant to
Section 617.0821, Florida Statutes, the Board of Directors may
approve an action by unanimous consent. This action
will have the same force and effect as if taken by said
directors at a meeting of the Board of Directors of the
Association duly called and the undersigned Directors direct
that this written consent to such actions be filed with the
minutes of the proceedings of the Board of Directors of the
Association. Unless the articles of incorporation or the
bylaws provide otherwise, action required or permitted by this
act to be taken at a board of directors’ meeting or
committee meeting may be taken without a meeting if
the action is taken by all members of the board or of the
committee. The action must be evidenced by one or more
written consents describing the action taken and signed by
each director or committee member; Action taken under this
section is effective when the last director signs the consent,
unless the consent specifies a different effective date; A
consent signed under this section has the effect of a meeting
vote and may be described as such in any document. NOTE: The
underlined provision means all of the board members must take
the same action i.e. unanimous. In the event the entire
board does not agree – the matter should be discussed at the
next board meeting. At a board meeting, the matter would be
decided by the majority.
condo President hired our Management Company’s
Administrative Assistant to be our Association Secretary last
year. She wrote up our minutes pretty well the first 2
meetings, but slacked off the last 3 meetings and did tape
recordings that never got transcribed. Scuttlebutt from the
Board Meeting when our previous President hired her at $50/hr.
was that she was offered the job and she took it, without any
formal vote by the Board members.
a previous Assoc. secretary, I was horrified to see the
current condition of our association minutes notebook. Before
our Members’ meeting, it had no records before March 2013.
Somebody had removed the previous secretary’s minutes. After
the meeting, the notebook miraculously had complete minutes
from 2008 to 2014, but nothing from last year. Last year’s
records that this hired secretary was responsible for, were
all missing. Now the new president/secretary is trying to fill
in those gaps and requested minutes from the last 2 years from
the last 2 secretaries. They refused to send him anything
except one recording from the Board meeting we held last week.
tape recorded meetings count as official records for a
meeting? Is our association liable for these missing records?
Thanks for your opinion.
a tape recording is retained by the association after the
minutes are created the tape recording is part of the official
records of the association. If an individual tapes a meeting
for the purpose of creating the minutes and keeps the tape
after the minutes are created it could be argued that the tape
is still part of the official records. Many associations tape
a meeting so that the minutes can be created later but most
attorneys would advise that the tape should be deleted after
the minutes are created. The minutes of a corporate meeting
are to reflect the business that was conducted at the meeting.
It is not intended for corporate minutes to be a transcript of
the entire meeting. The business is conducted at a meeting via
motions. The minutes should reflect any motions made including
who made the motion, who seconded the motion and perhaps a few
sentences about the discussion and then how the members votes.
condo complex was built in the mid-’70s. Reserves have been
historically kept for the following items: Roof, Painting,
Pavement and Washer-Dryers. While many other property
components would cost more than $10,000 to replace or repair,
no reserves have been set up for them. For example, elevators,
swimming pool, clubhouse, plumbing... These are all now 40
years old and will need to be replaced within the next few
years. Also, owners are not asked to vote annually on whether
or not they want to waive funding the reserves. That said,
some board members have been known to claim that our reserves
are fully funded. Should our Board not be creating new
reserves for those items that will cost more than $10,000 to
replace or repair and then ask owners on an annual basis
whether they want to waive funding the reserve? Also, when
waiving reserves, can owners do it on a line by line basis or
must it waive overall?
budget must include reserve accounts for capital expenditures
and deferred maintenance. These accounts must include, but are
not limited to, roof replacement, building painting, and
pavement resurfacing, regardless of the amount of deferred
maintenance expense or replacement cost, and any other item
that has a deferred maintenance expense or replacement cost
that exceeds $10,000. The members of an association, by a
majority vote at a duly called meeting of the association, may
vote to provide no reserves or less reserves than required by
this subsection. If the budget is not presented with fully
funded reserves, the board must permit the members to vote to
either accept or reject the budget as it relates to the
funding of the reserves.
the board of our condo association purchase 200 units to rent
on behalf of the association?
to Chapter 718.111 (9) PURCHASE OF UNITS.—The association
has the power, unless prohibited by the declaration, articles
of incorporation, or bylaws of the association, to purchase
units in the condominium and to acquire and hold, lease,
mortgage, and convey them. There shall be no limitation on the
association’s right to purchase a unit at a foreclosure sale
resulting from the association’s foreclosure of its lien for
unpaid assessments, or to take title by deed in lieu of
foreclosure. Therefore, unless your governing documents
specifically prohibit the purchase of units, your board can
continue to purchase and rent units.
is a condo owner running for the board. A few years ago this
person was recalled from the board for many infractions. Can
they run again?
members are eligible to run for the board except a person
convicted of a felony is not eligible unless such felon’s
civil rights have been restored or if the member is delinquent
in the payment of any monetary obligation. A member who was
merely recalled is eligible to run for the board.
see that you have answer questions in regard to Associations.
I live in condo governed housing area. My question is how long
does the board have to review a new buyer’s application for
membership, and to accept or reject this buyer for membership?
in advance for your consideration to answer my question.
board must have the authority to approve or reject a
prospective buyer granted in its Declaration. The Declaration
should include the time allotted to the board to consider the
buyer or it should be stated in the criteria used by the board
to accept or reject. Not more than 30 days would be considered
a reasonable amount of time for consideration.
very pleased to have discovered your blog online, and I hope
you can provide some feedback on my community’s dilemma. We
are a condo association in Miami; our community exists of 110
units and is approximately 35 years old. We have two tennis
courts and a pool. The owners and residents learned at a
recent board meeting that our board president is negotiating
with the local YMCA to allow their members/guests to use our
pool for swimming lessons (they do not have one). In return,
our association would be compensated and owners would have
their registration fee waived if they decided to join the Y.
Most of the residents are up in arms about this and do not
want it. We feel that our residential community is just that
— our home and not a public park. Can the board just push
this through without taking into account the opinion of the
owners? Our president, who does not live in our community and
rents his unit, has stated publicly that this will be a great
draw for renters. What can we do about this beyond engaging in
a letter-writing campaign to the YMCA letting them know we do
not want this intrusion into our quiet community? Any advice
you can give would be appreciated.
order to implement a program to sell memberships or to permit
non-members to use the amenities, the affirmative vote of 100%
of the membership could be required, as this could be
construed as a change to the general scheme of the
development. Providing non-members access to the community’s
amenities without the requirement that they are a guest of a
resident is not permitted unless it is authorized by the
Declaration of Condominium. In fact, the Nineteenth Judicial
Circuit Court of Florida issued a highly publicized ruling in Granuzzo
v. Willoughby Golf Club, Inc., that "even
though 67% of the voting members approved the amendment, the
amendment had the effect of destroying the general scheme of
or plan of the Willoughby Community." Therefore, it
concluded that to implement such a change, it was required
that 100% of the affirmative vote of the membership is
required because such an amendment was an impermissible
deviation from what had existed at the time of purchase.
it a breach of the Board’s Fiduciary Duty if they sign
contracts without having them reviewed by the association
is a very good question - and it hits close to home. As
general legal counsel to community association’s we are
often provided with facts as to a vendor or a management’s
company failure to meet the expectations of the Board of
Directors. We are asked to send the vendor or the management
company a letter advising that the services are being
cancelled. Upon review of the file, it is discovered that the
association never sent us this contract to review and merely
signed the contract put in front of them by the vendor or the
management company. When we ask for the copy of the contract
we find that it is not written in the best interest of the
parties - but it is very slanted to the vendor. The board has
a fiduciary responsibility to act in the best interest of the
corporation. It is not in the best interest of the corporation
to sign a contract without having it reviewed by an attorney.
Very often there are auto-renew provisions that are onerous
and excessive. Contracts that have an auto-renew feature that
is in excess of one year should never be signed. In most
cases, contract’s that have anything but a 30 day
cancellation with or without cause should not be signed.
Contracts that do not have a realistic cap on increases should
not be signed. Very often a cable contract has a broadcast fee
that is not limited to increases that are capped by the annual
escalator. Contracts that require the association to indemnify
the vendor or management company for anything beyond the
association’s contractual responsibilities should not be
signed. The list goes on and on. Associations should be
concerned about entering into contracts with vendors or
management companies that have been known to sue an
association for enforcement of its slanted contract or with
vendors that cause the association to enter into a contract
with unfair provisions without the advise of counsel. Signing
one’s name to a contract should not be taken lightly. Board
members are volunteers and they should not do anything to
incur personal liability for a volunteer position. As a board
- it is prudent to budget accordingly so that you have the
ability to seek the advise of professionals when it is
required. Do not enter into contracts without proper legal
advise as it could end up costing far more than the legal fee
to review the contract may have cost.
have a renter who is running for our Condo Board in Palm Beach
County Florida. He has been completely disruptive at meetings,
insists on being elected President for the new Board and is
insisting on being a check signer, even though he has only
rented in our community for 6 months, and has never served on
a Condo Board in Florida. We found out he has very poor
credit. below 500 ... can we stop him from being President or
being on the Board at all, our being a check signer with such
being a renter does not entitle this person to serve on the
board, the association bylaws must have a provision that
specifically permits non-owners to serve on the board. Absent
a provision allowing membership on the board by a non-owner
there is nothing you can do to stop this owner from serving if
he is eligible. If the unit is more than 90 days delinquent in
a monetary obligation or if the bylaws do not permit a board
member that is not an owner - the renter is ineligible.
Hello our condo documents
say a certain percent can be rented out and I was told we are
over that limit. My question is can an owner do a records
request and ask to see the number of rentals, the number of
owner occupied and the number if any of units owned by the
Association itself or is this against the law to see?
association is required to provide you with the information
you are requesting as part of an official records request.
Please note, you are not entitled to view applications for
rentals or any background or financial reports received from a
52 unit condo currently has in place a policy granting board
approval for owner modifications inside their unit. It started
out several years ago as a way to know what
contractors/vendors were on the property and to make sure they
were licensed and insured to mainly protect any work or
transporting of materials on common property. This policy was
written with guidance from our attorney to protect areas
within a unit that could affect neighbors and touch common
areas – such as main water pipes, electrical, etc.
owners are protesting some of the approval procedures as being
invasive – why can’t they hire an unlicensed, uninsured
worker to save money? Some general questions:-do other
association have approval rights? What constitutes the need
for an approval? Do they require all vendors on the property
– for association as well as owners – to be licensed and
insured? What level of insurance? Same insurance for owners
work as association? If the board doesn’t monitor inside
unit work, how do they protect the common grounds insurance
the fact that the law requires certain trades to be licensed
in order to contract to provide services, the association has
the right to require that all vendors or trades on the
property are properly licensed as the association can be at
risk if an unlicensed or uninsured vendor is injured on the
property. In order to determine which trades require a
license, you should contact the Contractor Certification
office in your county.
condo Board has for several years been giving owners, who
volunteer to do work projects, gift certificates for their
"services." Only recently has this practice been
discovered. There has never been any disclosure or accounting
by the Board of the number of gift certificates or amounts
given to certain owners (some of who are Board members or
their spouses). Nothing is reflected in our annual budget. The
property management firm had to have known about this
activity. While I believe the association gets good value for
such volunteer services, I have major concerns regarding that
owners were not advised of this practice. Is such practice
Maintenance Assessment funds may only be spent on common
expenses of the Association as defined in The Florida
Condominium Act and the governing documents. The Act states in
expenses and common surplus.—
expenses include the expenses of the operation, maintenance,
repair, replacement, or protection of the common elements and
association property, costs of carrying out the powers and
duties of the association, and any other expense, whether or
not included in the foregoing, designated as common expense by
this chapter, the declaration, the documents creating the
association, or the bylaws. Common expenses also include
reasonable transportation services, insurance for directors
and officers, road maintenance and operation expenses,
in-house communications, and security services, which are
reasonably related to the general benefit of the unit owners
even if such expenses do not attach to the common elements or
property of the condominium.
if the governing documents do not specifically allow the
purchase of gift certificates, the Association is not
authorized to purchase gift certificates. It would be
advisable to suggest the Association get a legal opinion from
its counsel to determine if this practice is in fact in
violation of the governing documents.
you for your website and for providing your advice. Recently,
the board had selective owners fill out a survey to see who
wanted to paint the building. I never received that survey and
several others never did as well. As an owner, am I allowed to
see the names of those who filled out that survey?
an owner you can make a request to review the official records
of the Association. The survey, if it was provided by the
Association, would be considered an official record that you
would be able to view.
the association requires 5 board members and only 5 sign up to
run for the board, they are automatically on the board without
election. Is that true? If it is true, can the existing
president allow a unit owner to be added to the list and
remove one of the 5. Please email me with the answer, our
annual meeting is coming up soon and I would like to make sure
that it is done right.
a condominium, a unit owner must submit his or her intent to
run for the board 40 days before the election. If, at that
time, there are five open seats and five members running, an
election is not required and the five members will be seated
on the board on the date the election would have been held. A
president does not have the authority to remove the name of a
member who timely filed to run for the board nor does the
president have the authority to substitute another name prior
to the election. If one of the members that submitted their
name to run for the board withdraws his or her name before the
election, then the new board, when seated would usually have
the authority to appoint a member provided the bylaws do not
was looking on line for some information when I came across
you great website. I have a question I was hoping you could
answer. We are community of 14 individual Associations, each
with their own set of Condo Docs, some almost identical, and
some very similar with a few differences. The property was
developed in the 1980s, by the same developer. There is a
master association; it controls the roads, security, lighting
etc, but not any of the common property of the individual
associations. The 14 Association Declarations makes no
reference to FS718. Their bylaws do make reference to Fs718,
but some may say as amended from time to time and some may
not. I wondered if you could tell me if the Declaration does
not reference Fs718, is the Association bound to comply with
FS718 and or any changes that were enacted to Fs718 since the
recording of the Declaration. (By the way, we would like to be
bound by Fs718; we should want to make sure we are.)Many
thanks in advance and Happy Holidays.
Association, as a condominium, is subject to Florida Statute
718, except if the governing documents do not specifically say
pursuant to FL STAT 718 as may be amended from time to time an
argument can be made that certain provisions of 718 may not
apply to your association. It is imperative for this reason
that you association work with its attorney to review and
update the governing documents to bring them current with the
changes to law over the years.
President of our HOA just handed down her position to another
board member saying she can’t do it any longer. Shouldn’t
this be voted on by the condo owners?
depends on your bylaws and how they are written - usually the
board selects its officers from among the directors that are
elected by the membership. The president is usually elected by
the membership as a director and then elected as president by
the board. If she is no longer able to serve as president, the
board usually has the power to appoint a member to fulfill her
term and / or to elect a new president.
a husband and wife serve on a HOA Board together if it is not
addressed in the governing documents?
a husband and wife can both serve on the board if there was
not sufficient interest from the membership to run for the
board and there is not an election because there were an equal
number or less of candidates for the available positions OR if
they own two or more units.
the BOD give personal information to a non-board member like
who is behind on dues or fees?
owner has the right to access the official records of the
Association. This would include the accounting records for the
individual unit owners.
a condo owner in Orlando Florida. Recently, our Board had a
budget workshop wherein they were diligent in making sure our
fees would not be raised in 2016. When the budget was sent out
there were additions and changes to the budget that they didn’t
make, as well as many errors. Our manager did this. We will be
voting on fully or partial funding of the budget on December
9th. If the Board is not successful in changing these numbers
before the meeting, can we as homeowners reject the budget. If
this budget is voted in, then the monthly amount will be
raised $15, something they were trying to avoid. Does the
manager have the right to change figures on the budget after
the Board held the workshop and told her what amounts to use.
Is this grounds for dismissal?
manager serves at the pleasure of the Board. The budget is
usually approved by the board at a meeting of the board not
the membership. Therefore the board will have the authority to
amend the budget as presented and to ratify the amended
budget. The board does not have to send out another proposed
budget before voting – the purpose of the meeting is to
discuss the proposed budget and to ratify it, even if the
board makes changes.
A member of our Board is
pressing to change the material alteration vote to a
"limited super or simple majority" where the votes
counted are limited to those of individuals participating in
the vote and he wants 51% as the threshold. Another board
member has argued that because our declaration sets the quorum
at 51%, this limited vote would set up a situation where
buildings could be altered with a 26% vote. Is all this legal?
I can’t find anything in the 718 about limited and super
vote to change the quorum or the percentage required to
approve a material alteration usually requires a vote by the
members not merely the board. The ability to conduct business
as a board is often thwarted by the lack of involvement of the
entire membership. It is important to note that if a vote is
based on the percentages that attend provided there is a
quorum that method merely sets the minimum for approval. If an
issue is controversial you can be assured that the membership
will show up in record numbers to voice an opinion. Therefore
– if 100% of the membership attends the meeting 51% will
make the decision.
an owner provides his email address to the association to meet
its notice requirements, is that email address considered to
be an official record and available to any owner upon request?
FS 718.111.(12)(c)5. L.K.
an email address provided for notice requirements is part if
the official records and is available to an owner that makes
an official records request.
condo is in the process of adopting our budget. The president
of the board has improperly posted notice for budget approval
without sending each owner a copy of the proposed budget.
While the notice is posted in common areas, we have many
non-resident owners that would not see the posting. Further,
our by-laws require 30 days advance notice vs. the 14 days’
notice cited in Florida 718.
Can the President be removed for knowingly violating the law
in adopting the budget? What is the board’s recourse for the
President serves at the pleasure of the board and the board
could vote to remove this member as president, although he or
she would still remain on the board as a director. To remove
the member from the board would require a vote of a majority
of the members unless the president is more than 90 days
delinquent in the payment of a monetary obligation. The
process to remove a director from the board is called a
recall. Recalls are regulated by the Division of Condominiums
and are to be completed in accordance with Administrative Rule
61B-50.105(2). More information on the specific requirements
for conducting a recall can be found at the Divisions Website http://www.myfloridalicense.com/dbpr/lsc/condominiums.html
Which takes precedence, the by-laws or Florida 718?
law takes precedence over the governing documents, unless the
law clearly state "unless the governing documents provide
otherwise." I have included the requirements in the law
as outlined below:
OF MEETING and
/ PURSUANT TO FL STAT 718
hours posted (or pursuant to documents) with agenda.
days mailed (along with a copy of the proposed budget) and
posted, unless documents require a longer time period.
days for first notice; 14 days for second notice, mailed,
delivered or electronically transmitted and posted.
meeting to levy a special assessment
days mailed and posted must also include statement that
assessments will be considered and the nature, estimated cost
and description of the purpose of such assessment in the
meeting notice (14 days applies to meetings to establish the
insurance deductible as well).
meeting to adopt rules regarding unit use
days mailed and posted
to bylaws (usually at least 14 days mailed, delivered or
that take final action on behalf of the board or make
recommendations to the board regarding the association budget
must notice their meetings 48 hours in advance, and the
meetings must be open to the unit owners.
that DO NOT take final action on behalf of the board or
make recommendations to the board regarding the association
budget must notice their meetings 48 hours in advance, and the
meetings must be open to the unit owners, UNLESS the bylaws
with the Association attorney
be noticed 48 hours in advance, but are not open to unit
owners when the Association’s attorney is present and the
meeting is held for the purpose of seeking or rendering legal
advice with respect to proposed or pending litigation.
regarding Personnel Matters
be noticed 48 hours in advance, but are not required to be
open to unit owners when the meeting is held for the purpose
of discussing personnel matters.
am the treasurer for an art deco building in south beach. We
have done extensive repair of the building and the project is
coming to an end with the painting of the building. All has
been approved and assessed. However, we just found out that we
can change the color of the building to be more art deco like.
Do we need 75% vote to change the color of the building? The
painting has been approved but color was never discussed
change in the color scheme is a material alteration that may
or may not require a vote of the members. A review of the
Declaration is required to determine if it requires a vote of
the members to approve a material alteration. If the governing
documents are silent a material alteration would require 75%
approval by the owners pursuant to FL Statute 718. 113.
Association has routinely billed attorney fees to individual
owners. These fees are for responding to questions on
remodeling, writing initial warning letters to owners for
alleged violations, phone calls to and from board members,
phone calls from owners (after the owners were told to contact
the atty. and warned not to contact the board or mgmt.
company) and other what appears to be routine matters. There
is no specific language in the condo documents outside the
normal language for collection on assessments or by court
action. This is all done automatically without a board vote or
any due process right to question or appeal. It is also done
without any notice to the owners, it simply appears on their
quarterly bill. When asked about where this authority comes
from, owners are told the condo documents, however the
association refuses to provide any specific location. The
management company and board refer any question to the board’s
attorney who, of course, then generates another bill which is
passed onto the owner. In reviewing our condo documents and
Florida statues I can find nothing that addresses this issue.
Is this legal?
authority that a condominium has is granted it either via the
law or its governing documents. The law does not grant the
association the authority to pass through attorney fees except
for the collection of a debt or at the conclusion of a
lawsuit. Often a declaration gives a condominium the authority
to charge a unit owner for legal fees in advance of a lawsuit.
For example when a violation letter is ignored and the matter
is referred to the association attorney for action an
association may have the authority to charge the owner for the
legal fees. . It would be very unusual for a declaration to
grant the association the authority to pass through routine
operations of the association to a unit owner merely because
the owner makes an inquiry of the board. Very often when unit
owners are aggrieved – such as this – the best recourse is
to run for the board and institute effective changes so that
the unit owners can respectfully cohabitate without intrusive
actions by the board.
live in a 134 unit comprised of 2 buildings in Florida. There
are 32 2-bedroom units and 102 1- bedroom units. At the time
when declarations and by-laws were filed, it was determined
that both 1 and 2 bedroom units would pay the same monthly
dues. There is a movement afoot to change the required docs so
that the 2 bedrooms pay mores dues. What is the percentage of
the vote required to change the document? Is it 75% or 100%
(because it deals with common expenses). The documents also
state that each unit owns 1/134 of the common elements.
to Florida Statutes Section 718.110 (4), 100% of the unit
owners must approve a change in the proportionate share of
assessments. Therefore charging the two bedroom units a
greater share than the one bedroom units is not likely to be
condo documents state that a majority of members in person or
by proxy is required to pass a material alteration. I just
read that the Florida statutes require 75%, unless a higher
percentage is required in our documents. I thought I read
somewhere that condo documents could require a higher
percentage but not a lower amount is this correct? Question:
Is our percentage of majority legal? Or do we need the 75%?
Thank you for any help you can give me.
Florida Statutes specifically state that the declaration shall
prevail if it provides the percentage required to approve a
material alteration. The statute states that if the
declaration does not specifically address this issue, then the
percentage required to proceed with a material alteration is
75%. Therefore, if your declaration requires the vote of a
majority of the residents to approve a material alteration,
the board can proceed if the affirmative vote equals a
majority of the membership. I have included the specific
provision that controls with an emphasis added:
Except as otherwise provided in this section, 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. This paragraph is
intended to clarify existing law and applies to associations
existing on October 1, 2008.
stumbled upon your website and truly appreciated your question
and answer format.
am president of a 151 unit condominium association on the SW
coast of Florida and have several questions that I cannot find
a good answer for on the web and then one other question of my
documents state that we will have 5 members of the board but
we cannot get members of the community to run. At our last
election we had but one member run for reelection and
afterwards our president delivered his resignation as a result
of selling his unit and leaving the area. We were then able to
appoint another member for the remaining portion of the year.
So we now have 4 members but 2 terms expire at the end of the
year leaving only 2 members remaining on the board. What
happens when residents will not run for the board and there
are less than the needed number of Board members? I have heard
rumors that the state would then take over the association.
How true is this and what are the ramifications of a state
communities get older, this is happening more often. A quorum
for a five member board, regardless of how many members are
serving, is always three. Therefore as long as you have three
members serving on the board you can conduct your business. In
the event that you have less than three you would be unable to
pass motions and conduct your business. The state will appoint
a receiver to oversee the business of the condominium but that
is not to any advantage. You don’t mention whether or not
you have a management company, but perhaps, if you are self
managed, hiring a management company would alleviate some of
the difficulties of serving on the board and attract more
is the association responsible for the maintenance of common
property where contours of that property changes causing
rainwater runoff to direct itself towards owners lanais
causing flooding of those entities.
the association is responsible for maintaining the common
areas which would include preventing the runoff from the
common area from flooding the private property of the
my (and the Boards’) knowledge there does not appear to be
anything disallowing private individual garage/yard sales. We
have had an annual community clubhouse rummage sale which was
utilized by our Social Committee as a fund-raiser. Residents
would bring their items to the clubhouse to be sold by others
and the Social Committee retained any and all profits.
we are permitting the existing community clubhouse fund-raiser
are we discriminating against individuals by not taking
further action, as individuals have approached me and other
members of the board requesting to hold their own private
garage/yard sale? We discussed this at our last meeting and it
was met with quite mixed emotions. As the board president, I
would like to take action proposing such a happening by adding
to our rules and regulations so we can control such a thing by
holding only one annually on a date approved by the board.
municipalities have a local code that defines how many garage
sales may be held per year. Often it is a maximum of two
garage sales per year. Your community garage sale would fall
under that regulation. The board would have the authority to
restrict unit owners from having their own garage sales
pursuant to the powers granted it under the Articles of
Incorporation and the Declaration of Condominium.
about the fund-raiser, is it legal and if so are there any
rules as to how the Social Committee is to spend their monies
since this group works under the pretense of benefiting the
whole community. As of now, they have a rather large sum of
money on their books and are not funded by the Board through
the annual budget. This is a Social Committee only and
currently all parties and gatherings are charged events to
cover all their costs. This Social group even solicits and
requires donations at morning coffees and covered dish dinners
where all the food itself is donated by members of the
community when they attend.
you for your help - I am anxiously awaiting your response.
social committee should not raise more money than they spend
or they may have to pay taxes on the profit. The auditor and
the attorney for the association should be consulted regarding
the legal and tax consequences of the activities and finances
of the social committee.
serve on a condo board of 9. I was on the board the previous
year and was the only board member from that board voted back
in. I have noticed that I am left out of a lot of voting and
decisions that are made. They typically communicate their
business by email between each other. I received a couple
emails as a group with prior attachments that I was originally
left off of and this is how I know I am being left out. My
question is: Can a board deliberately leave another board
member out of the loop?? If no what action can I take? Thank
You for your Time.
board of directors is required to conduct its business at a
properly noticed board meeting. To circumvent this requirement
by discussing and voting on matters via email is in violation
of 718.112. This email communication could be considered a
meeting without proper notice to the members. Perhaps you can
put the board on notice that they are in violation of the
intent of 718 by conducting business of the association vial
email instead of at a duly noticed meeting. If the problem
persists you may have to refer the matter to the association
bylaws state that we are to hold our annual meet on January 20
at 10:00 am. Our Secretary/Treasurer has a conflict with that
date. What step need to be taken to change the date to Feb. 1,
are arbitration decisions that are directly on point. Unless
or until you modify your bylaws, you are obligated to conduct
the meeting on January 20, 2016. Perhaps the Secretary could
attend by telephone. Furthermore, it is important to note that
the annual meeting is a meeting of the members – not the
board – therefore it is a quorum of the entire membership
that is required in order to conduct official business – not
merely a quorum of the board.
am on the Board for a 64 unit complex. We have 33 year old
limited common element decks that have been deemed unsafe by
an engineering firm. The cost to replace a deck is $13,000. I
believe this is a maintenance issue and the Board of Directors
can make a special assessment to have the decks replaced.
Other Board members want to have the owners vote. Our
Declaration requires a 2/3’s vote by owners only if it is a
Capital Improvement. Since we are not changing the
configuration of the decks, using different materials, or
adding any new features, it is not a Capital Improvement and
does not require a vote. If we take a vote and the owners vote
not to replace the decks, does this relieve the Board of their
fiduciary duty of maintaining the limited common element
reviewing your governing documents - which would be required
to render a binding opinion – it appears that the repair is
necessary and therefore does not fall under the definition of
a capital improvement requiring the vote of the owners. The
board has a fiduciary to maintain the common elements. If the
repair requires a special assessment there may be some
additional requirements under your governing documents. It
would be prudent of the board to seek a legal opinion from its
general counsel prior to proceeding with this project.
am the president of our condo association and our board is
working on the budget for next year. We have been meeting for
the past 8 weeks and we are supposed to finalize the budget
this Tuesday [Sept.8, 2015]; however, we cannot all agree on
the numbers. Two board members feel we have a surplus, while
two feel we have a deficit, and the other member states she is
confused between the two scenarios. Is it possible for me as
president to make a decision to hold off on finalizing the
budget on the date we had previously stated on the posted
notice to the residents? I would like to suggest we still meet
to express our concerns to the residents and to further
discuss the option of turning our budget over to a
professional [perhaps a CPA] and then make a decision at a
later date. Would this be possible?
concern is that a volunteer board is proceeding without the
advice of competent professionals – such as a CPA. Without
having more information as to the number of units and the
amount of your annual budget, it is never prudent for board
members to put themselves in a position of personal liability
under the premise of "saving" money and not hiring a
CPA or an attorney and in fact it may be required under the
law. Florida Statute 718.111 requires the following levels of
An association that meets the criteria of this paragraph shall
prepare a complete set of financial statements in accordance
with generally accepted accounting principles. The financial
statements must be based upon the association’s total annual
revenues, as follows:
An association with total annual revenues of $150,000 or more,
but less than $300,000, shall prepare compiled financial
An association with total annual revenues of at least
$300,000, but less than $500,000, shall prepare reviewed
An association with total annual revenues of $500,000 or more
shall prepare audited financial statements.
An association with total annual revenues of less than
$150,000 shall prepare a report of cash receipts and
An association that operates fewer than 50 units, regardless
of the association’s annual revenues, shall prepare a report
of cash receipts and expenditures in lieu of financial
statements required by paragraph (a).
order to fulfill your fiduciary responsibilities – you
should have a CPA review your financials and your budget to
determine if in fact there is a surplus that can be used to
offset next year’s budget and to fulfill the reporting
requirements under the law.
condo board, who has not been properly funding reserves, now
wants to replace pavers and the waterproof membrane around the
pool deck, which I have no problem with. It is time. This is
about a $500,000 job. But in addition they want to convert the
standard pool to an edgeless with salt water chlorine
generator, relocate pool equipment, relocate the shower,
install water features and cabanas, install palm trees,
shrubs, flowers and other grass and plants on a 40 year old
deck that would require about $400,000 of deck reinforcements
to carry the additional weight. Plus incorporate a garden area
for people to sit around and have beer and wine which would
require changing the Rules and Regs for this has never been
permitted. I and others feel they have overstepped their
authority and we would not need a special assessment if they
did not include all the additional changes. What can we do?
condo docs say the Association can make changes provided they
are approved by the Board. It doesn’t say the Board can make
changes and 718.113(2)(a) says that if the condo docs do not
specify a procedure for making changes then 75% of the
Association needs to approve the changes.
believe Boards are supposed to operate, manage and maintain
the property as is, protecting the Architectural scheme and
integrity and if Owners want there to be material changes to
the property it should be up to them to decide that, not a
rouge Board that is pandering to a few party animals in the
changes you are referencing most certainly appear to be
material alterations although I am not in a position to advise
if they are or not.
your condo doc’s give the board the authority to make a
material alteration, which is what you have described, without
a vote of the owners or with a specific percentage of
affirmative votes by the owners, the Board is not authorized
to make a material alteration without the affirmative vote of
75% of the membership.
a sitting Board member of a time share condominium permitted
to electioneer by e-mail for his favored candidates while
disparaging other candidates? He does this by writing a
"Dear Friend" letter to all of the members just
before the annual Board elections extolling his
"loyal" candidates and warning against the other
"untrustworthy" candidates he does not favor. May he
use the condo association’s e-mail address lists to do so,
some of which may be authorized by their owners to be used by
this person or by the association, but many of which are not
is nothing to prevent a member from sharing his opinions with
other members. In regards to the official member roster, the
list is part of the official records of the association and is
available to all unit owners by request. Therefore, the board
member is entitled to request the list and to use the
information on that list for contacting the members.
a board wants to have a status review meeting with a committee
prior to a regular scheduled board meeting where decisions are
taken, do they by law have to post this meeting for the total
time a quorum of the board meets – the board is required to
post the required notice. If the committee is not a decision
making body, such as architectural review or a fining
committee, and they are meeting with less than a quorum of the
board there is not a requirement to post a notice.
you please tell me if a condo owner hires a lawyer on his own
and takes our board to arbitration and the board does not have
the money to pay for a lawyer can the board have a special
assessment on all the condo owner to pay for the cost of a
lawyer. Can we as owners opt out of the cost. Thank you.
condo association pays it bills by assessing the membership to
meet its expenses. Responding to a lawsuit is a common
expense. Therefore the condo association has no choice but to
assess the membership to pay for its defense and a member
cannot opt out of contributing his or her pro-rata share.
Annual Condo Association Meeting is scheduled to be held
January 2016. On the agenda will be several proposed
amendments to our Declarations and Bylaws. Following our
Documents, we will notify all owners of this meeting at least
14 days prior to the scheduled meeting and provide a copy of
the proposed amendments and proxies for all owners not in
residence. We have one owner who has been known to disrupt our
meetings with comments detrimental to the Board, in particular
three of the five members. He has made it clear he has a
disdain for these three. He is a new owner who hasn’t
experienced Condo living for any extended period of time and
has very little knowledge of the contents of our documents or
Florida State Statutes. We are sure he will attempt to bring
to the floor amendments to the proposed Amendments we will
present to the Association Membership. Can an owner have the
proposed amendments be "amended" by those present?
Proxies received will be cast for or against the Proposed
Amendments the Board has submitted. Proxies received count
towards the number of owners needed to pass or reject the
order to consider an amendment – the proposed amendment must
be presented to the unit owners in advance of the meeting.
Therefore, a member cannot revise the amendments proposed by
the board from the floor of the meeting. A member can speak to
every agenda item and therefore he would have an opportunity
to voice his concerns. If enough residents share his viewpoint
the amendment may not pass and the discussion may lead the
board to consider revising the amendment, but the members
cannot vote on an amendment that has failed to be noticed to
the entire membership in advance of the meeting.
a town home HOA, with adequate reserves, can we install a pool
heater as an improvement to the common area without jumping
through the hoops of sending out letters to get a 75%
approval. I am a board director and would like to get this
done. Our documents allow us to make improvements to common
the Association is a homeowners association it can proceed to
install a pool heater by board vote provided there is nothing
in the governing documents to prevent the board from making
this decision. See next question and answer if you are a
mother owns a condo in Broward County. Last year she had to
replace all her windows with impact glass windows to ensure
the condo could get a discount on their insurance. Now she is
being told that she has to replace some of those new windows
with a sliding glass door leading out onto the balcony. I
believe only one resident has that configuration now and they
did that illegally some years ago. My mother used to be on the
condo board and says that a change like this should require
100% of the owner’s agreement. Can you please tell me if
this is correct, or if instead, it requires a lesser
percentage of votes to change what we consider to be the
structure of the building? Thank you very much.
the Association is a condominium, pursuant to Florida Statute
718.113 a vote of the unit owners may be required. Florida
Statute 718.113 provides that a material alteration or
substantial addition to the common elements must comply with
the provisions in the declaration and if the declaration is
silent as to a material alteration of substantial addition the
affirmative vote of 75% of the residents is required.
Therefore a change from the original windows to sliding glass
doors more than likely would require the affirmative vote of
75% of the residents unless the declaration requires a higher
my condo association sent out a survey to all residents (750
units) asking questions regarding sex, education level,
employment status, mortgage status, and relationship status
including whether or not I have a domestic partner. Is this
even legal? The pretense of the survey was to question
residents about improvements or additions to the various
amenities (pool, tennis courts, clubs, etc.) available in the
is nothing to prevent the association from conducting a survey
of the residents just as there is nothing to require that you
answer such a survey unless there is something in the
declaration that requires you provide the association
information. Very often governing documents do require the
unit owners to provide the association with the name of the
bank that holds the mortgage on the unit or to provide proof
a condo board director decline a nomination to serve as a
director is not required to serve as an officer of a
corporation unless they want to accept that responsibility.
president of a condominium board. At a recent board meeting I
mentioned that I want to replace our Treasurer with another
board member who I felt strongly was more suited to the
position. The existing treasurer was not at this meeting (he
had left Florida). I proposed a present member, to whom I
spoke to before the meeting, and he accepted the position. I
told the board why I came to this conclusion and they nodded
their understanding without much discussion.
felt that as President I had this authority. Did I?
president of a condominium, as CEO of the corporation usually
has as much authority as the board allows him or her to
exercise. Robert’s Rules are often cited when determining if
a vote at a meeting was conducted with the proper
parliamentary procedure. Most board members and managers are
not aware that Robert’s Rules recognizes the problem of
applying formal parliamentary rules to board meetings. Robert’s
Rules specifically provides that in a board meeting where
there are not more than a dozen board members present, some of
the formality that is necessary in a large assembly can be
rules governing such meetings are different in the following
Members are not required to obtain the floor before making
motions or speaking, which they can do while seated.
The president can make motions and vote on all matters.
The president can speak on any
matter before the board.
No motion needs to be seconded.
There can be informal discussion of a subject without a motion
If a proposal is perfectly clear, a vote can be taken without
any motion having been introduced.
After a general discussion has been held without a motion,
action can be agreed upon by unanimous consent without taking
a vote at all.
board always has the option to follow the regular, more
cumbersome parliamentary procedures if the board works better
in a more formal setting. However, most boards seem to
function more efficiently with a simplified process. Of
course, on important or very complex matters, a clearly stated
motion can be helpful to ensure that everyone understands what
is being voted upon.
the board did not object to your recommendation it was
approved unless or until the same matter is discussed as an
agenda item at a subsequent duly noticed board meeting.
own a condo unit that I’m trying to sell, and have a pending
sale about to fall thru. The buyer’s lender discovered a
pending lawsuit (some sort of breach of contract with a 3rd
party) against the Condo Association. This lawsuit was not
disclosed to any of the unit owners, and is being defended by
the association’s insurance company. The problem I’m
having, is that none of the actual parties involved with the
suit will disclose the dollar amount being sought. They are
all citing lawyer/client confidentiality. The lender of the
potential buyer is thus not approving the loan without knowing
the amount, whether the insurance company will cover the
amount in the event the lawsuit is judged in favor of the 3rd
party, and whether the association’s reserves will cover any
damages in the event of a loss. What rights do I have as a
unit owner to successfully obtain the "confidential"
information so I can sell my unit?
Condominium is required to provide the answers to specific
Frequently Asked Questions to every prospective purchaser. One
question in particular could alleviate your buyers concerns.
Ask the condominium to comply with 61B-17.001, F.A.C. The
condominium is required to provide you with the answers to all
of the required questions including the following: "Is
the condominium association or other mandatory membership
association involved in any court cases in which it may face
liability in excess of $100,000? If so, identify each such
case." While the strategy the association is
contemplating in defending the lawsuit may be protected, the
actual pleadings can be obtained from the clerk of court.
Reviewing these documents should give the lender enough
information to determine if the lawsuit is going to prevent it
from approving the loan.
am very happy to have discovered your website. I am a
homeowner in Miami Beach. I am trying to stop a project my
Condo Board wants to do in violation of our condo’s own
bylaws which require a 75% or more majority vote from us the
unit owners for approval. The project they want to do is not a
normal maintenance item that does not require our vote. It’s
a total destruction of our current cement balconies and its
complete reconstruction with glass railings. Our condo bylaws
clearly state that this type of project falls under
"Capital additions, alterations or improvements" and
require our vote as noted above.
July 7th the Miami Beach Design Review Board is conducting a
meeting to give its decision on this project, where I explain
why this project should not proceed. I also plan to speak
before them about this issue. Your advice is invaluable for
me. How can I stop this project from going forward based on
the fact that it is in direct violation of our condo’s
you for your consideration.
your board is unaware of the requirements of the governing
documents and the law which usually necessitates that a
material alteration requires the vote of the membership. The
DRB members may or may not understand that this change
requires a vote of the membership and if it does it could make
the vote of the members a condition of the approval. In the
event that this matter is not decided by the membership, you
could file an action for non-binding arbitration with the
Division of Florida Condominiums. Pursuant to its website, the
Division participates in these types of disputes because in
1991, the Florida Legislature adopted a law requiring
mandatory non-binding arbitration of certain types of disputes
before filing the dispute in the courts. The objective of the
program is to provide a just, speedy and inexpensive
alternative to litigation in the courts. If a party does not
appeal the arbitration final order within 30 days from the
date of the order, the final order becomes binding on the
parties. Section 718.1255, Florida Statutes define disputes
eligible for arbitration as any disagreement between two or
more parties and the authority of the board of directors or
the association’s governing document. An eligible dispute
for arbitration requires any owner to take or not to take any
action involving that owner’s unit or the appurtenances
thereto, or involving the alteration or addition to a common
area or element of the condominium property.
required to be arbitrated before filing an action in court are
disputes involving the failure of a governing body, when
required by law or an association’s document to properly
conduct elections, give adequate notice of meetings or other
actions, properly conduct meetings, and allow inspection of
books and records.
not eligible for arbitration include any disagreement that
primarily involves: title to any unit or common element; the
interpretation or enforcement of any warranty; the levy of a
fee or assessment; the collection of an assessment levied
against a party; the eviction or other removal of a tenant
from a unit; alleged breaches of fiduciary duty by one or more
directors; claims for damages to a unit based upon the alleged
failure of the association to maintain the common elements or
documents state that if a unit owner replaces carpet with
tiles they are required to put in an underlayment to deaden
the sound. The board passed a ruling that unit owners living
in downstairs unit do not have to put an underlayment, but the
upstairs units must. I think this is discriminating against
those living upstairs. My question is can the board do this?
the Board has a rule that the underlayment must be installed
under tile, and the board has the right to enact rules without
a vote of the members, the board could vote to change the rule
to permit units on the first floor to install tile without an
underlayment. If the Board is going to consider such a rule
change it would be required to provide 14 days’ notice of
the meeting where it will be discussed. If the Declaration of
Condominium requires underlayment under tile – the board is
unable to change such without the required vote of the
members. The underlayment is required to prevent the sound
from walking on the tile to be heard in the unit below. Since
there are not any units below the first floor – it may be
reasonable for the board to vote to permit those units to
forego the underlayment.
... I own a condo unit that I’m trying to sell, and have a
pending sale about to fall thru. The buyer’s lender
discovered a pending lawsuit (some sort of breach of contract
with a 3rd party) against the Condo Association. This lawsuit
was not disclosed to any of the unit owners, and is being
defended by the association’s insurance company. The problem
I’m having is that none of the actual parties involved with
the suit will disclose the dollar amount being sought. They
are all citing lawyer/client confidentiality. The lender of
the potential buyer is thus not approving the loan without
knowing the amount, whether the insurance company will cover
the amount in the event the lawsuit is judged in favor of the
3rd party, and whether the association’s reserves will cover
any damages in the event of a loss. What rights do I have as a
unit owner to successfully obtain the "confidential"
information so I can sell my unit? Thank you.
association should be able to provide sufficient information,
without violating attorney client privilege, to satisfy the
lender. In fact, every condominium is required to provide
answers for the benefit of prospective purchasers to a series
of questions referred to as "Frequently Asked
Questions." One of the questions is "Is the
condominium association or other mandatory membership
association involved in any court cases in which it may face
liability in excess of $100,000? If so, identify each such
case." Provide the lender with the condominiums answers
to the frequently asked questions to see if that satisfies the
lenders concerns. If the condominium is not in compliance with
providing this document, you could bring it to their attention
that it is required. The form is available on the Division of
the Association’s attorney block or place any unit owner’s
email address in the Spam mode so he does not receive the
email? The email questioned actions by the board and we sent
it to him as the question was related to the Association
matters for which the unit owners need his clarification? Can
he do that? We pay his salary, this is a Miami Condo with 448
units with a Budget of approx. 1.6 Millions USD annually, we
are paying him over $100k yearly for his services. Is it meant
that we the property owners can’t engage our attorney for
specific legal advice?
association attorney represents the corporation, not the board
or the unit owners. The association attorney serves at the
pleasure of the Board and the board decides who it will
authorize to communicate with the attorney. The unit owners
are not permitted access to the association attorney unless
the board authorizes such communication. The association
attorney is under no obligation to communicate with unit
owners and should not do so unless authorized by the board. If
you have an issue of concern that requires legal counsel you
will have to pursue this as an individual.
year, for many years, our condo unit owners have voted to
waive funding the reserves. This occurs because when the
proposed budget is sent out in advance of the annual meeting,
the Board of Directors provides a dollar figure of what the
monthly maintenance payment would be if full funding of the
reserves were to be included and, comparatively, what it would
be if the reserve funding were waived. There is considerable
difference and many unit owners may choose to vote for the
lesser figure. However the board each year states in the
letter wording that the Board URGES the unit owners to vote
for waiving the funding of the reserves. Suddenly however,
there are meetings scheduled to discuss how the Association is
going to make up for a huge reserve deficiency. What right
does the Board have to URGE a vote one way or another
especially on such a critical issue? If there is a major
assessment levied to make up this deficiency the people who
lived here for years but have since moved or passed away
enjoyed a reduced monthly assessment but those who bought in
the past few years are going to have to make up for those
reduced fees in the form of a new lump sum assessment. That
seems totally unfair and it’s all because the Board URGED
former owners to not save for a rainy day. Would greatly
appreciate your opinion on this. Thank you ... Baffled in
residents have to consider the vote to waive reserves
regardless of whether the board urges them to do so. If you
feel strongly about this you can also urge the residents to
vote to fund the reserves. As long as there is such a
mechanism that permits a condominium association to waive
funding the reserves for the statutory reserves, the residents
will have the option to vote to waive the funding.
the President of a Condo Association and I’m fairly new to
this so please bear with me. I have a couple of questions.
Can any other board member besides the president or vice
president sign a contract? Although we vote on matters, our
Treasurer and Secretary are trying to do things on their own
without all the facts being presented and only notify the rest
of us when it’s all set and done.
If several board members are in violation with statues and
by-laws (voting by email, altering meeting minutes, etc), what
are the consequences? How can they be removed from the board?
As president what can I do about it?
During our Annual meeting we put our nominations for the
board, a couple of days later we met and elected the new
board. Originally one of the board members did not put in for
the nomination and took her mother’s place when we elected
the new board. Was that legal? She asked and we said okay, but
we had no idea if it was allowed or not?
to Florida Statures 718, decisions are made in a condominium
association at board meetings by a vote of the majority of the
Board. A board member has no authority to act on his or her
own. A board member cannot make unilateral decisions outside
of a meeting. There is a provision in the law for a board to
conduct business by written consent in lieu of a meeting –
but to ratify an action by written consent outside of a
meeting requires an affirmative vote by 100% of the board.
a board member is more than 90 days delinquent in paying a
monetary obligation to the association he or she is deemed to
have abandoned their position and is therefore no longer a
board member. Absent such, the only way to remove a board
member is by recall which would require the membership to vote
remove the member pursuant to the requirements that can be
found on the Division of Condominiums website.
annual meeting and election must be conducted pursuant to the
process outlined in Chapters 61B-15 through 24, 45 and
50, Florida Administrative Code and Florida Statutes,
Section 718. The process requires that all candidates submit
an intent to run. If there are less candidates than positions
on the board an election would not be necessary- and the new
board could appoint a member to fill a vacancy.
live in a 24 unit condo group in Venice, Fl. We have a Bylaw
that clearly states that owners can have pets limited to
typical domestic animals and they must be well behaved and
under control and be of a certain size and weight. The Bylaw
says it is up to the discretion of the Board which pets are
well behaved. There is a rule that was passed two years ago by
the Board that we can only have 1 animal. I purchased the unit
after that rule was in place. Both my dogs meet every
stipulation of the Bybaws but no one from the Board has ever
asked to meet either one. I am no longer able to leave one
with my sister nearby so I have a problem. I recently was
voted on the Board and have had a good look at the Bylaws and
the rules and regs. and have discovered several conflicts
between what is written in the Bylaws and what has become a
rule. Does a bylaw supersede a rule and what do you do when
they conflict. We also have a blanket Bylaw that states condo
owners will follow all rules and regs.? Would really
appreciate your opinion on this matter before I bring it to
the Board. Thanks
– your reference to the Bylaws is probably incorrect – the
provision you mention is more likely located in the
Declaration of Condominium. Next – as it relates to your
association, you would need to engage the association attorney
for specific legal advice. In general - a rule enacted by the
Board cannot modify a provision that has greater authority
because it is in the Bylaws or the Declaration. It is
important to understand the hierarchy of governing authority
for community associations. They are, in order of greatest
authority to least authority, 1) Federal Law, 2) State Law, 3)
Local Ordinances, 4) Declaration of Condominium (or Covenants
for a homeowners association), 5) Articles of Incorporation,
6) Bylaws, 7) Rules and Regulations and 8) Robert’s Rules of
Order. An association cannot amend its governing documents if
the amendment will conflict with a provision or a law that has
a higher authority. For example, a rule or regulation enacted
by the Board cannot attempt to modify a provision in the
Declaration, unless the Declaration has a provision permitting
such a modification by a rule. If your Declaration states that
an owner can have pets it is unlikely a rule could be enacted
limiting an owner to one pet. If the intent was to allow one
pet – the word would not be plural. Perhaps the Declaration
has a provision that the Board can enact rules – and that
would be acceptable – as long as the rule did not change or
modify the Declaration. Another good example would be the
ability to approve the sale or lease of a unit. Unless the
Declaration provides that the Association has the right to
approve the sale or lease of a unit, the board cannot
institute such an approval process through a rule. However, if
the Declaration authorizes the board to approve the sale or
lease of a unit, the board may be within its rights to
promulgate rules regarding the sale or lease of a unit.
Ms. Konyk, first let me say thank you for taking the time to
answer questions for HOA’ s that owners may have. I have a 2
part question which I’m hoping you can answer. The board has
determined in the last board meeting to impose a $600 a year
fee for owners to park their boat in a common boat yard. The
common area does have a lift gate and utilizes a card key to
open. The boat yard has been in use for the past 20 years here
in Perdido Key Florida. My questions: 1. Can they assess us
without a vote from the owners? 2. Are they now liable for any
damages/theft that could occur to boats due to the imposed
your governing documents authorize the board to implement a
special assessment without the vote of the owners, then you
board can implement such an assessment. You question does not
explain what the fee is for or if it is assessed equally
amongst all of the members or just those utilizing the boat
yard. Unfortunately this column cannot be utilized to answer
specific questions as it relates to your governing documents.
As to your question regarding liability – as you are
probably aware – we live in a very litigious society.
Liability is ultimately decided by one party accepting the
risk or by a court of law. The Association should have its
insurance policy reviewed to determine if it has sufficient
coverage in the event there is an action brought against it
and it is determined to be liable.
a Board make separate rules for tenants and owners including
pets and use of common areas? Paul C.
tenant cannot be restricted access to the common areas. An
owner cannot use the common areas during time his or her unit
is rented as that righ to use the common areas is transferred
to the tenant. As to your question regarding pets, if the
Declaration of Condominium specifies that tenants may not have
pets, then the board may restrict tenants from having pets.
The board cannot restrict tenants from having pets by enacting
a board rule.
recently learned that the board gave a Christmas bonus to the
licensed cam each year without notifying the association that
they are doing this. The bonus is $2,000 each year and the
check is signed by the association president. I have also
learned that the board is signing contracts for a retainer
contract to a CPA to do the audit. We have had the same CPA
for over a decade. There are no board meetings before the
condo assn. to discuss these issues. We have about three
meetings per year.
Board does not have to have a meeting every time monies that
are budgeted are spent. The Licensed Cam’s bonus is more
than likely a budgeted expense that was approved at the same
time the budget was approved. As to the audit by the CPA –
the president is more than likely authorized by the board or
the governing documents to take care of day to day business.
The president approved the audit by the same CPA that has done
the audit for the past ten years. Perhaps if the president
selected a new auditor without the board of director’s being
aware of such there may be a cause for concern. The law
requires two meetings a year – a budget meeting and an
annual meeting. Unless the governing documents provide
otherwise or the board is making decisions privately that
require a board vote, your association may very well be in
compliance with the law.
I saw your web page and would like to ask if the resident
application I filled out and my background/credit checks are
private and if anyone is able to access my personal
information. I have lived in this complex for three years as a
renter. I just want to know if Board Members or anyone else
for that matter have access to my information. Do all
applications have to remain behind lock and key? I would think
the Property Manager and Secretary have access. This worries
me as the office is left empty often and we have gone through
four Property Managers in the last year I appreciate your
response. Lisa B. Florida
information to approve a sale or a rental is not part of the
official records of the Association. It is not necessary for
the Association to retain the information after the sale or
rental is approved and the information is confidential and
should be protected.
Condo president owns two units in here and has now moved off
property and will be renting the unit he lived in. Can he
still remain president??
he can still remain president. All members are eligible for
service on the board and there is nothing in Florida law to
require that residency is a requirement to remain on the
condo board approved a cost of living increase to be effective
each following year, for the maintenance person. Some owners
think this needs to be approved by every future board each
year, so can this decision by previous board be applied to
long as there is not a contractual obligation to the employee
to provide cost of living raises, future boards can change
such a policy. Just as the current board voted to approve cost
of living raises, the next board could vote to stop issuing
future cost of living raises.
an Annual Condo Association Meeting has been scheduled, what
procedures must be followed in order to change the date? We
would like the meeting to be held one week later than the
scheduled date. Your prompt attention is appreciated.
board would have to notify the members of the new date of the
meeting with the same formality that was required to notify
them of the first scheduled meeting, provided that the
documents do not require the meeting to be held on a specific
have a Director in our condo association who has sold his unit
and will close on it in early April. He intends to resign as
of 3/31. He has several "old business" agenda items
that personally involve him which he most likely will bring up
at his last BOD meeting in March. Does he have to recuse
himself in any vote or discussion on these items?
sure what you mean by "personally involve him" . . .
in the event he will realize a personal gain from a board
decision he must recuse himself. If the items in question are
merely items that he was personally involved in there is not a
requirement for him to recuse himself. For example, the
president should recuse himself if owns a landscaping business
and now that he is no longer an owner or on the board. The
board may want to vote to consider hiring his company.
mailed my letter of intent to run for the condo board on the
19th of February. The management company left my name off of
the ballot saying they did not receive it till the 20th of
February and the cutoff was the 19th. My question is, does the
postmark of my letter (which they admit is the 19th) or the
date they received my mail determine the cutoff date.
date your intent to be a candidate is actually received is the
date that matters. In fact the post mark is proof that you did
not timely submit your intent as it would be very unusual for
a letter to arrive on the same day it was postmarked. It is up
to the candidate to make sure his or her intent is received on
a unit owner can I request the emails of other unit owners if
they have asked to receive info from the office via email?
a member elects to receive notices via email, his or her email
becomes part of the official records which is subject to
inspection by a member.
am the President of a Condo Association. We have 8 membership
meetings in addition to our annual owners meeting. In
addition, as board members we meet several days in advance of
each meeting to discuss what will be placed on the agenda. We
do not conduct condo business or take any action or votes on
any subject. All such meetings are posted as required in case
a unit owner wants to attend and request something be placed
on the agenda for the regular meeting of the BOD. My question
is....do we to take minutes of these agenda meetings when all
we do is formulate the agenda for the upcoming meeting?
meetings are the meetings where the members can make motions
and or vote on the business that is before the community –
such as the annual or special members meetings. Board meetings
are the meetings where the board meets to make decisions and
vote on things that come before the board. The only things
that should be contained in corporate minutes is the business
that is conducted at the meeting. Business is conducted in the
form of motions. Therefore the minutes should only contain the
motions that are considered and the results of the vote on
those motions. If the board meets in advance of the board
meeting to set the agenda – it is not necessary to take
minutes because the agenda is the record.
question is whether our condo association, the Board of
Directors has the direct authority to purchase units at
foreclosure sales. The wording in FS 718 and our declaration
which both clearly give the ASSOCIATION the authority to
acquire units at foreclosure sales, but does NOT give the
Board of Directors specific authority to act. In fact, Section
VIII of our By-Laws, states specifically that the Board of
Directors must have the approval of the unit owners to acquire
units at foreclosure auctions. This approval has never been
given as there has not been a quorum present at an annual
owners meeting in over 12 years.
number of unit owners feel it would be better for the
association to allow units in foreclosure to be sold, at
auction, to "others" instead of the association
acquiring them and they want to challenge our Board but would
like an informed opinion before any further action is
anticipated. Our unit owners have NO access to our Association
Attorney for such questions and the BOD is very closed.
start with the comment at the end of your question first – a
commonly misunderstood principle is the association’s
attorney’s role in the association. The association attorney
does not represent the unit owners. The association attorney
does not represent the Board of Directors. The association
attorney’s role is to represent the corporation and that
role may often be in conflict with what the unit owners and
sometimes even the board members expect from the attorney. The
business judgment rule protects board members from personal
liability if they act pursuant to advice received from counsel
for the association. If the board ignores the advice of the
attorney they can be held personally liable if their actions
are challenged and found to be in breach of the governing
documents or in breach of the law. If a unit owner or a board
member feels they personally require representation, the unit
owner or the board member must seek the advice of his or her
provisions in the law trump all of your governing documents.
The provisions in your Declaration – a covenant running with
the land – trump your bylaws. Your interpretation of the law
is incorrect because 718.111 (9) states in pertinent part as
follows: "There shall be no limitation on the association’s
right to purchase a unit at a foreclosure sale resulting from
the association’s foreclosure of its lien for unpaid
assessments or to take title by deed in lieu of
foreclosure." No limitation means just that- no
are two different types of foreclosures. A mortgage
foreclosure is the litigation by the bank when the mortgage
payments are delinquent. A lien foreclosure is the litigation
by the association when the assessments are delinquent. It is
not unusual for someone to confuse the two types of
foreclosure. Your association is obligated to
"purchase" a unit at its lien foreclosure sale if
there are not any bids that exceed the indebtedness. The
association places the first bid for the amount of
indebtedness. If no one bids higher than that, the association
is awarded certificate of title. The point of the lien
foreclosure bidding process is to make sure that if anyone
other than the association bids - the bid is for more than the
association is owed so that the debt will be paid in full. It
is more likely that your association is properly protecting
the association by proceeding to foreclose its lien. It is
unlikely that your association is bidding on units that bank
I live in a condo complex in Orlando. The police have been
called on our neighbors many times for sound complaint’s and
suspicion of domestic abuse. It keeps happening though and the
police don’t seem to be able to do anything aside from
swinging by and asking them if everything’s okay. These
incidents occur several times a week and are both disruptive
and cause concern for the possible victims safety as well as
our own. I’m pretty sure the occupants are renters but I don’t
know anything about the owner and the management company for
the neighborhood claims she can’t do anything. Is there any
action we can take through the management company or condo
association to have them removed or penalized?
governing documents of the association should provide the
board with a remedy to resolve this situation. It may be as
narrow as allowing for the eviction of the offending tenant or
as broad as requiring that an owner not permit anything that
may be a nuisance to others to occur on the premises. Perhaps
a written request that the board look into resolving this
issue through the governing documents or by legal action.
stumbled onto your site and was pleased to know there is
someone available to guide condo owners in a direction that
will help them resolve issues.
husband and I, as well as some other family members have
purchased units in a small (24 unit) complex. We are finding
the allowing of pet-friendly rentals to be causing problems.
The association adopted rules about no pets being allowed in
the pool area nor in grassy areas. Pets are to be taken off
property to tend to their needs. Pets are also to be under
positive control (held or on a leash) at all times they are
outside the individual unit. We find that renters leave for
the day and their pets find themselves in unfamiliar
surroundings and bark all day. For owners and renters who
remain on property, the noise spoils the relaxing environment.
documents are silent on the issue of renting to pets. The
documents were prepared in 1972 and have only had one
amendment which was not in regard to pets. Until 6 or 7 years
ago only owners were allowed to bring their pets. When a new
owner came in and acquired several units, the idea of allow
pet-friendly rentals was introduced. There is no provision in
the documents and there is no rule that was adopted by the
Board or the owners. More than half of the current owners do
not approve of pet rentals. It has been stated by one owner
that the rights of the owner transfer to the renter. Since
these are vacation rentals, is that the case? Since the
documents are silent on this issue, there is much debate and
many of us would like to know if the owner of a property that
is rented for vacation (short-term) rentals can pass the right
to have pets to a vacation renter. Your time and energy to
respond to this question is sincerely appreciated.
the governing documents have language regarding pets, the
board cannot modify that language with a rule. If the
governing documents are silent regarding pets the board can
adopt rules regulating or prohibiting pets including
restricting pets to owner occupied units. Therefore if you are
correct in your analysis of the governing documents – your
board can pass such a rule provided they give the unit owners
14 days’ notice of the meeting where they intend to consider
this rule because it affects the use of the units.
live in a condo that I bought that requires one of the owners
to be 55 or older. My son is 41 years old and recently moved
back from Argentina and is staying with me. I added him to my
title prior to submitting the occupancy paperwork, in case
something happened to me that there would be no issues. He
also needed to have his driver’s license updated and used my
address. I submitted the paperwork with the money for a
background check and it was done and sent to the Building
President. The building president is known as a "condo
commando". The history with him has been difficult for
me. I had issues just trying to get the appointment for my HOA
interview though my condo was a cash sale because this
President was having some type of surgery, and kept yelling at
my realtor and me on the phone. I ended up with an extension
of a month before he finally screamed a name at us that we
were able to contact and have an HOA interview 3 days before
my extended closing of a month. I’ve been here two years
now, and it has been over a month since the paperwork came
back and I encountered the board president while walking my
catwalk and asked him when my son would be contacted for the
HOA meeting to grant him occupancy status so that he can get
his ID and have access to the clubhouse. He was rude and
vague. I asked him if something came up on the background
check, and he said NO, (my son has a clean background check
plus an excellent credit score)...but he said this that the
address on his license was my address so he hasn’t decided
what to do with him. This is my first condo experience. Can
they deny my son living with me as I am entitled to 2
occupants as long as they are over 18? Please advise.
long as the Association follows the same criteria when
approving or denying occupancy it will be within its rights to
approve or deny a potential occupant. It does not appear from
what you have said that the association will have a valid
reason to deny your son’s residency since you are also a
resident, thereby satisfying the Fair Hosing requirement that
at least one occupant must be over the age of 55 in housing
for older persons.
there a way to "search" to see if you have already
answered a question? The president of our board is requiring
me to send my questions to the board by U.S..mail. He states
that if I use his e-mail address for my questions that he will
not respond to me. All the other members of our association
can contact him by e-mail. What can I do about this?
of the previous questions are available on this page (scroll
down). The board of directors is not required to allow
residents access via email although the board is required to
respond to written inquires within 30 days. A board is
permitted to establish reasonable rules regulating inquiries
– such as limiting the number of inquiries a resident can
make in a specific a timeframe – and/or establishing the
method for making inquiries – such as via certified mail.
condo association is currently involved with a balcony
concrete restoration project. The balconies are a limited
common area of every unit with the association responsible for
maintenance of the walls, ceiling, railings and concrete
balcony cantilevers. The owner is responsible for maintaining
and replacing as necessary the sliding glass doors and tracks,
stationary glass panels, tile floor covering and hurricane
shutters/tracks. The Declaration does not contain an
"incidental damage" clause. The tile flooring and
hurricane shutters/tracks were not part of the original
construction of the building. The association required
installation of both the flooring tile and hurricane shutters
with passage of an amendment to the Declaration about ten
years into the buildings life.
appears that arbitration decisions support removal and
replacement of sliding glass doors and windows as a common
expense of the association. The tile flooring and hurricane
shutters/tracks are improvements performed by the unit owner
after building construction and their removal and replacement
costs are generally a unit owner’s expense from what I have
read. The big difference with our association from other cases
I reviewed is that our association required the
installation of the tiles and hurricane shutters. Would this
perhaps require the association to cover the removal and
installation of tile and shutters as a common expense in those
cases where it was necessary for the association to perform
its maintenance obligations?
question – especially considering that the Unit Owners ARE
the Association and whether the Association or the owners pay
– the owners pay. The association does not have a magic
bucket of money – it pays for everything that it does by
assessing the unit owners.
and thank you for your help.
have a quick question regarding the time frame for the
association approval process. I have been told they require a
month to review and accept my very much qualified tenants
application. That of course sounds like too long for me. I
just applied myself and I was approved in 3 days.
question is if there is any law that can states that they
cannot exceed 14 days or is that incorrect? I live in Florida.
is not a law that states the timeframe that an association has
to approve or deny a tenant. The declaration may have language
that deems the tenant approved if the association does not act
with a specified time-frame. Refer to the Declaration of
Condominium to determine if there is any restriction on the
time the association has to respond. Many declarations do
allow the association up to 30 days consider occupancy.
The answers above are for general information only and are not
intended as legal advice to your particular association.
The individual situation of any association may differ based
on many factors. You are urged to contact your
association’s attorney regarding the specific applicability
to your association.