have been presented with several contracts that our management
company claims are exclusive offerings it negotiated on our
behalf. We have discovered that the management company is
receiving a payment from the providers of these contracts if
we enter into the agreement. We are also being told that there
is no point in taking the contract to our attorney, as the
provider will not modify the contract - since this is a
special deal they have negotiated and we cannot make any
have always had a policy of having our contracts reviewed and
revised by our general legal counsel. We are concerned that we
might be in breach of our fiduciary duty to the association if
we merely sign this contract on our management company's
recommendation when in fact they have a financial interest.
Are we protected from personal liability if there's an issue
with the contract and we did not have it reviewed by our
one should put his or her name on a contract for the
association without having it reviewed by its legal counsel.
As a board member you are protected from personal liability if
you act pursuant to the advice of your professionals. Our
experience proves that it is imperative that the directors get
a legal review of all contracts prior to execution. It is far
costlier to rescind a "bad" contract than it is to
review the contract to make sure that it is in the
association's best interest. We have a concern that a provider
of services is negotiating with another provider of services
on "your behalf" for which it is receiving
remuneration. This does not appear to be an arm's length
transaction and to suggest that you cannot have the contract
reviewed by counsel is troubling. Given the trend in the
legislature to penalize unjust enrichment we would expect that
this practice will be eliminated. It is not fair to an
association to suggest that you accept a contract without
considering alternatives or without having the contract
reviewed when the party bringing the contract to you is
receiving what some might refer to as a kick back – which is
defined as "a payment made to someone who has facilitated
live on a lower floor of a high-rise condominium. I am being
assessed for a new roof. It seems that only the residents on
the top floor should have to pay for a new roof. When I
inquired the board said I have to pay.
concept – but wrong. I am at a loss for words – except to
say- all of the owners are responsible for replacing the roof
of the building as it is part of the common elements. Let's
look on the practical side - without the roof – your unit
would likely be damaged by water intrusion even though you are
on a lower floor. If your unit is damaged by water intrusion
the building envelope would be compromised. If the building
envelope is compromised you will be assessed an amount that is
far greater than your pro-rata share for a new roof.
you for your valuable advice for condominium residents. I did
find a couple entries in your Ask the Lawyer page that provide
tangential help but hoped to ask about my specific situation.
I recently purchased a villa that was built in 1966. In 1969
the villa next to ours was constructed and it was built on and
over the property line of the original LCE area assigned to
our unit. As such an amendment was filed that adjusted the
line to accommodate the new unit, in 1971 a new amendment was
made and a map of the whole complex called "corrective
survey" was filed that drastically modified the LCE
basically giving roughly half of our LCE to the new unit.
Nobody knew this had occurred because previous owners of our
unit did not seek to improve the LCE lawn. When we purchased
the unit we started to improve the LCE and submitted our plan
to the HOA. To their surprise and ours, the new map showed
that the area we wanted to improve was not ours. There are no
amendments that show consent for the change but I wondered if
there is a statute of limitations on contesting this
discrepancy as it has been 44 years since the change was made.
regards to the statute of limitations – a change made 44
years ago is well past any statute of limitations – which
typically does not exceed five years for an amendment to the
governing documents. A corrective survey indicates that the
property line was not modified – but that that the original
survey was not correct.
of the most common surveyor mistakes is a miscalculation of
property boundaries. Often, this occurs due to disorganization
or a simple mistake. Occasionally, it's due to a malfunction
with the equipment, causing it to relay inaccuracies. Errors
like these lead to inaccurate mapping, often failing to show
property easements or other boundaries. Even a small problem
like this can be costly. If a home or building is erected in
the wrong spot and the mistake isn't discovered until late in
the building process, the repercussions can cost thousands of
condo had set a precedence of allowing owners to pay
assessments over time. They also allowed the assessments to be
taken over by purchasers according to negotiations with the
seller (either in part or full) Now the board decided without
any discussion or notice that the entire assessment amount
must be paid upon a unit sale (in my case almost $20,000).
This is will inevitably mean that the sellers will get less
for their unit as they cannot "tack the amount on"
since it prices the unit out of the market. Also some unit
owners had listed their units for sale on the assumption that
the "old way" was still in force and were thus
blindsided with little chance to do anything about it. Is
there any legal recourse here?
the assessment, when passed, did not specifically say that a
seller could not transfer the unpaid installments to the buyer
– it is more than likely not permitted for the association
to require it be paid in full prior to transfer- unless there
is specific language in your governing documents that
addresses the payment of special assessments when selling a
said - there are standard provisions in real estate contracts
that require the seller to disclose a pending or ratified
special assessment and that require the seller to pay a
special assessment in full – although that is a negotiable
item between the buyer and the seller.
not confuse what the association may or may not require with
what is required in a contract between buyer and seller –
and always seek the advise of a competent title attorney when
you are involved in real estate transactions.
Florida Condo law have any law that says 50% or more of the
BOD have to be permanent residence of FL? We have a problem
with our BOD where all of them do not live here in our condo
permanently year-round here in Palm Beach. The only come for a
week or maybe a few months at a time. They all conduct the
meetings via telephone and are not present or really know what
is going on here as they do not live here and this is not
their permanent residence. It has been very problematic for
many reasons. Does FL have any laws about this? Can our BOD
make a rule that at least 50% of the BOD must be permanent
residence to be on the BOD?
is a transient state and it is not uncommon for members of an
association to be snowbirds. It is presumed that all members
are eligible to serve on the board – unless they fall under
one of the provisions of 718.112 that prohibits eligibility to
serve on the board.
original design of our balcony porches has vertical metal bars
and screens, referred to by some residents and board members
as "prison bars." The thought is that a new modern
design with bring a higher price when selling a condo.
are about to embark on a major balcony renovation of concrete,
during which all sun shades, bars and screens will be removed.
Many of our residents enjoy this closed in screened porch and
have not heard any plans by our board to return it to its
have been told that we will have a vote on the option of three
design choices, none of which include screening. Does the
board and it's hired engineers have the right to change this
screened in porch design without a vote of the owners?
you in advance for an answer.
board is giving you an opportunity to vote for something –but
it is not clear from your email if it is for a design or a
material alteration of the common elements. If your governing
documents are silent then such a change will require a vote of
75% of the owners as it sounds like the change that is being
proposed is a material alteration of the common elements. Your
documents may require a different percentage of affirmative
votes in order for the association to proceed with a material
alteration. If the change is deemed a material alteration
requiring the vote of the owners and the association does not
receive sufficient votes to proceed, the board is obligated to
retain the current configuration of the balconies. If your
documents give the board the discretion to materially alter
the common elements without a vote of the membership, you may
only be able to select one of the three options. It would be
prudent for you to inquire if the board has an opinion
regarding this change from its general legal counsel.
have a board member that pays his condo dues late. Can he run
for the board if he is not up to date on his assessments?
a director in a condominium is more than ninety (90) days
delinquent in the payment of any monetary obligation due the
association, he or she is deemed to have abandoned the office
and removal is automatic. This same board member can run for a
position on the board in an upcoming election, but at the time
he takes office he must be current in all obligations to the
have a problem with a dog barking in the unit above me. The
owner has three dogs, that moved in after I bought my unit.
The dogs bark consistently. I have complained to the board.
And they don't seem to do anything and the dog continues to
bark, waking my wife and baby. Any suggestions?
should first ask your neighbor if they are aware that the dogs
are barking Many times pets are left alone and the owner is
not aware of the problem. If your neighbor is aware and still
refuses to resolve the problem, most municipalities have an
enforceable code that prohibits such a nuisance. Instead of
contacting the Board, you may want to follow the procedure for
you municipality. The municipal code will outline the
requirements for providing a complaint about the barking dogs.
For example, in Palm Beach County, a dog that "habitually
barks, whines, howls or causes other objectionable noise
resulting in a serious annoyance, shall be deemed to be
committing an act in violation." The remedy is that an
animal control officer, upon the receipt of two (2) sworn
affidavits of complaint may issue a citation to the owner or
custodian of any animal alleged to be in violation. One of the
affidavits can be from your property manager, if he or she has
heard the dogs barking, and one can be from you and / or one
of your neighbors. While it is never pleasant to have to go
through the process of issuing a formal complaint about a
neighbor's pet, it is sometimes the only way to get a
resolution to a barking dog.
provide the proper procedures for handling fines in a
is imperative that the Board of Directors follow the proper
fining procedures codified in Florida Statutes and
supplemented by arbitration decisions, case law and the
association’s governing documents. The procedure for fining
in condominiums is mandated by Florida Statute 718.303(3).
Associations may levy reasonable fines for the failure of the
owner of the unit or its occupant, licensee, or invitee to
comply with any provision of the declaration, the bylaws, or
rules and regulations.
must be sure to have evidence to support each of the
violations (letters to the owner, photographs, video, etc.).
a violation is to incur a fine, the fine must be levied
by the Board against a unit owner, its occupant, licensee, or
invitee; a fine is not levied by the fining committee. A
meeting of the board is not required to send out the violation
notice and /or to begin the fining process.
fine cannot be imposed unless the Board first
provides at least 14 days written notice and an opportunity
for a hearing to appeal the fine before the fining committee.
The hearing is required in any event so that the Fining
Committee can vote to uphold the fine or reject the fine, even
if the owner does not intend to appeal the fine. It is
recommended that an association provide a minimum of 21 days
to safely avoid the fine being invalidated and uncollectible
for failure to comply with notice requirements. The letters
must be sent to the property address and the mailing address
of all unit owners. The letter must be addressed to all owners
of the property.
association may not lien property in a condominium association
for the failure to pay a fine.
BY FINING COMMITTEE:
of the fining committee are required to be noticed 48 hours in
advance and are open to all members of the association. All of
the proceedings are conducted at the hearing, including the
vote to either confirm or reject the fine. Minutes, which
become part of the official records of the association must be
procedure requires that the violator be given the opportunity
to state the reasons that the fine should not be imposed and
the violator may present evidence or be represented by
counsel. The role of the committee is limited to
determining whether to reject or confirm the fine or
suspension levied by the Board. If the committee is unable to
reach consensus of a majority of its members, the fine or
suspension is not imposed.
MEETING TO IMPOSE
the committee confirms the fine, then the Board imposes the
fine. It is recommended that any fines that are confirmed by
the fining committee are ratified at the next Board meeting.
ASSOCIATION REQUIREMENTS FOR COMMITTEE AND FINES:
a condominium association, the statute is silent on the
minimum number of committee members necessary, however,
Florida corporation law provides that any committee must have
at least 2 members. A condominium fining committee can only be
comprised of unit owners who are neither board members nor
persons residing in a board member’s household.
the following, an owner must be given the opportunity to
attend the hearing at which the fining committee will uphold
the fine or suspension imposed by the Board of Directors. It
is important to note that this meeting is required in order to
confirm the fine or suspension and to add the fine to the
In a condominium association, a fine cannot exceed $100.00 per
A fine cannot be more than $1,000.00 in the aggregate;
A fine cannot become a lien in a condominium association;
A fine is not added to the ledger or collected until upheld by
the Fining Committee regardless of whether the owner attends
am in a condo in the State of Florida. Recently the
water pipe that serves our unit broke and had to be
fixed. The Association has stated that the cost is ours
as the owners. The pipe is above the ceiling and I have
no access to it unless I cut into the ceiling.
we be paying for that pipe?
Florida, responsibility for repairing and restoring property
damaged by a casualty loss rests with the party who insures
it. Who insures what part of a condominium is not determined
simply by whether the element in question is a part of the
unit or a part of the common elements. The association and the
unit owner both should file a claim with their respective
property insurance. Florida statutes requires that a
condominium property insurance policy must cover "[a]ll
portions of the condominium property as originally
installed," except for, "all personal property
within the unit ... floor, wall, and ceiling coverings,
electrical fixtures, appliances, water heaters, water filters,
built-in cabinets and countertops, and window treatments,
including curtains, drapes, blinds, hardware, and similar
window treatment components." (See, §718.111(11), Fla.
order to determine liability as to water damage from a
casualty loss we will first look to Fla Stat. 718.111 (11)
paragraph’s (f) and (j) regarding insurance requirements for
causality losses which states in pertinent part as follows:
(f): provides that all condominium
association insurance policies issued or renewed on or after
January 1, 2009 must provide primary coverage for: "All
portions of the condominium property as originally
installed or replacement of like kind and quality, in
accordance with the original plans and specifications"
plus any properly approved material alterations to the common
elements or association property.
Paragraph (f) also states that the association policy
"must exclude all personal property within the unit or
limited common elements, and floor, wall and ceiling
coverings, electrical fixtures, appliances, water heaters,
water filters, built-in cabinets and counter tops, and window
treatments, including curtains, drapes, blinds, hardware, and
similar window treatment components, or replacements of any of
the foregoing which are located within the boundaries of the
unit and serve only such unit. Such property and insurance
thereupon is the responsibility of the unit owner."
(j): provides that: "Any
portion of the condominium property, that must be insured by
the association against property loss pursuant to paragraph
(f) which is damaged, shall be reconstructed, repaired or
replaced as necessary by the association as a common
exceptions are then listed in paragraph (j) such as if the
damage was caused by the negligence of the owner or if the
owner failed to timely reports the property loss to the
association which damage or loss would then be the
responsibility of the owner rather than the association.
to the provisions of Fla. Stat 718.111 (11), a condominium
association’s members may vote, by the approval of a
majority of the total voting interests, to opt-out of the
provisions of paragraph (j) for the allocation of repair or
reconstruction expenses related to a casualty loss and instead
allocate repair or reconstruction expenses in the manner
provided in the declaration as originally recorded or amended.
Quite often, water damage in a condominium is the result of
someone’s negligence: an owner fails to replace an old water
heater; a maintenance man incorrectly installs an ice maker; a
forgetful owner permits a bathtub to overflow. Water escapes
the unit and damages other units and common elements below the
source of the leak. How does this negligence affect the
analysis of who must pay for the repairs?
is important to note that negligence is secondary to the issue
of who is initially responsible for repairing the damage, and
the possibility that the damage may have been caused by
negligence does not change the analysis as to how to determine
who is responsible for the repair. However, the presence of
negligence may allow the party saddled with the repair
responsibility to recover his losses.
example – a unit owner’s water heater bursts and the water
heater is 15 years old. The Unit owners who have sustained
damage may have claims against the Unit whose water heater
burst for the damage to their personal property within the
unit or floor, wall and ceiling coverings, built-in cabinets
and counter tops, and window treatments, including curtains,
drapes, blinds, hardware, and similar window treatment
components, which are located within the boundaries of the
unit and serve only such unit. Likewise, the association may
have claims for damage to the drywall and other affected
elements that it insures. In regards to negligence- negligence
is extremely difficult to prove negligence – absent a
lawsuit. We would not rely on negligence to substantiate who
is responsible for a claim. The issue of responsibility due to
negligence is not clear and it is very often not determined to
be negligent without litigation, unless as it relates to for
example in regards to a very old water heater unless there are
specific provisions in the Declaration requiring action by the
Unit Owner to replace a water heater that exceeds a certain
number of years.
evidenced by the length of this correspondence – these are
very complex issues that require a thorough analysis each time
an event occurs in order to determine liability for a repair
necessary because of water intrusion and whether or not
negligence can be determined and does that require a different
party to be responsible.
Florida can a condo Board legally contract for bulk internet
service to each unit, which is in turn billed to the owners?
A condominium board has absolute authority to contract for
bulk cable and Internet regardless of whether it is granted
such permission in the governing documents. The authority s
granted in 718.115 1(d) Common expenses and common surplus
which provides as follows: If provided in the declaration, the
cost of communications services as defined in chapter 202,
information services, or Internet services obtained pursuant
to a bulk contract is a common expense. If the declaration
does not provide for the cost of such services as a common
expense, the board may enter into such a contract, and the
cost of the service will be a common expense.
a condominium board waive a requirement from the condo docs
for an owner? Specifically allowing a unit owner to forgo
putting down a sound barrier under new flooring. The Docs
require it. Unit owner is asking that the Board to not require
him to put down an under layer because he is on the second
floor with no units under him. The Board is not in favor of
waiving any docs. There is also concern that noise would
emanate to the next-door units.
board does not have the authority to waive a requirement for a
sound barrier. In most municipalities a unit owner is required
to obtain a permit before installing tile and the code more
than likely would require the same. Sound travels and the
units that are connected may also be disturbed if the sound
barrier is not installed. The failure to require the sound
barrier would be a short sighted and could potentially cause
future lawsuits resulting from the failure of the association
to abide by the governing documents.
have an owner who has taken steps to sell his parking space
apart from the unit. Our documents state: "Once the
parking space has been originally assigned by the Developer, a
conveyance of the condominium parcel without reference to the
appurtenant parking space shall, nevertheless, also convey the
parking space." We have not had any amendments to our
documents in this regard.
seems to support that the parking space cannot be sold
separate from the unit.
you are correct in that a parking space that is appurtenant to
a unit cannot be separated from that unit and sold. It may be
permissible under the governing documents for a unit owner to
permit another unit owner the "use" of the space
that is appurtenant to his unit for a fee, without the actual
transfer of ownership of that parking space.
to Florida Statute 718.107 (2), the condominium parcel must be
transferred as a whole. Therefore, the common elements and
other appurtenances cannot be separated from the condominium
parcel. A parking space is an appurtenance to the parcel.
Since the parking space was not "deeded" separately
from the unit, a unit owner cannot sell or transfer their
may be an instance where a developer has additional spaces
available after each unit has been assigned its share and they
may offer the additional parking spaces to unit owners for
purchase. The additional parking spaces may or may not be
deeded independent of the condominium parcel. Pursuant to
requirements in the governing documents, a unit owner may have
the ability to transfer a parking space that is not an
appurtenance to the unit to another unit owner. If the unit
owner you refer to does not have a separate deed to the
parking space they are attempting to convey, then it cannot be
separated from the condominium parcel and any such attempt to
transfer the ownership of the parking space would not be
the Association manager who is running the election point out
to an individual that their envelope was not correctly filled
in when it was hand delivered on the day of the meeting and
therefore invalid and give them the opportunity to correct it.
the ballot has not left the control of the voter – it may be
corrected. Once the ballot is tendered to the association, no
corrections may be made and if for example the voter neglected
to sign the outer envelope, it must be disregarded.
happens when 2 votes are received from one unit, should the
outer envelopes be opened, for instance, if someone who was
not sure their vote had arrived in time filled in another on
the day of the meeting. Can they both be opened to check the
ballots are the same and then one disregarded and one counted?
two votes are received from the same unit owner and they are
postmarked the one with the earlier postmark is counted and
the one with the later postmark is disregarded. If both are
hand delivered and there is no postmark, they should both be
disregarded. In the event one of the ballots is determined to
be valid only that ballot is opened with the other being
and thank you for your help. Right now, we have one owner who
has purchased 3 condos in our complex of 40 units in one year,
and I was wondering if the State of Florida or anybody else,
allows either an owner or investors, to buy as many condos in
one complex as they want or is there a limit. If they are
allowed, sooner or later they would have control over the
board and the complex and be able to change our documents and
about anything else they want, forcing other owners to sell.
your Declaration of Condominium does not have a provision
limiting the number of units that can be owned by the same
person or related persons, there is nothing that can be done
to prevent one person from owning multiple units. If the
community is concerned about one person gaining control of the
association, a Declaration amendment can be proposed and if
ratified it would prevent future multiple purchases by one
the new legislative rules for a board member regarding an
8-year limit taking effect on July 1, is that going to be
retroactive or will it take effect moving forward from July 1,
only time legislation is retroactive is when the legislature
specifically states that it is retroactive. Even with such
language, in some instances, applying a statutory change
retroactively has been determined by some courts to be an
impairment of contract. In regards to the issue of term
limits, the eight years is measured from the date the new
legislation goes into effect and any terms prior to that date
are not counted against the limit.
rent our condo out to a young couple with two children.
Recently, the president of our homeowners’ association
stated that this couple had some friends visiting and were
using the common area pool. The president specified that the
renters were in violation of rules which she claimed state
that our two-bedroom unit can only allow 2 people per bedroom
to use the pool. This seems very arbitrary and suggests
discrimination. Can this be true?
a review of your governing documents, it is not possible to
give a specific answer. Your governing documents may in fact
limit the number of guests allowed at the pool at one time -
but I would doubt that such a rule limiting guests is based on
the the number of bedrooms. Perhaps your rules state that no
more than two (2) persons per bedroom can occupy a unit and
the president may have this confused with the guest privilege
on the subject of association rules, it is important to note
the hierarchy of governing authority for community
associations. They are, in order of greatest to least
authority, 1) Federal Law, 2) State Law, 3) Local Ordinances,
4) Declaration of Condominium (or Covenants for a homeowner’s
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 power. 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. A 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.
live in a condominium in Florida. Our Board of Directors are
continuously holding meetings that are not posted. Our
Community Association Managers are also present. Can they do
The board cannot have a meeting unless it is noticed. It is a
requirement of Florida condominium law that all meetings be
posted, regardless of whether or not they are open to the
membership. Unless the governing documents provide otherwise,
the following notice is required for meetings: Board
Meeting – 48 hours posted with agenda. Budget Meeting-
14 days mailed (with a copy of the proposed budget) and
posted. Annual Meeting - 60 days for first notice, 14
days for second notice, mailed, delivered, or electronically
transmitted. Board meeting to levy special assessment-
14 days mailed and posted – must include the purpose and
estimated amount of special assessment in the meeting notice. Board
meetings to adopt rules regarding parcel or unit use – 14
days mailed (along with a copy of the proposed rule) and
posted. Members Meeting – Pursuant to Bylaws, usually at
least 14 days mailed or delivered. Committee Meeting
– Committee that takes final action on behalf of the board
or makes recommendations to the board regarding the
association budget must notice meetings 48 hours in advance,
and the meetings must be open to unit owners. Meeting with
Association Attorney – Must be noticed 48 hours in
advance but are not open to unit owners when the meeting is
held for the purpose of seeking or rendering legal advice.
each apartment in a condominium have 1 vote, regardless of the
square footage of the apartment?
proportionate share for calculating assessments is often
calculated based on the square footage of the unit. Unless the
governing documents provide otherwise each unit would have one
vote when voting in elections or for material alterations or
a condo association cancel bulk cable contracts thereby
allowing the residents to use the cable/satellite company that
best fills their needs?
the contract for bulk services is within the cancellation
period at the end of the term, the Association can non-renew
or cancel the contract. As to whether the association is
obligated to provide bulk cable for the residents, most
governing documents have a provision that permits the
association to bulk cable but does not require that the
association provide bulk cable. To determine the answer to
your question would require a review of the bulk cable
contract and your governing documents.
and thank you for your help. Right now, we have one owner who
has purchased 3 condos in our complex of 40 units in one year,
and I was wondering if the State of Florida or anybody else,
allows either an owner or investors, to buy as many condos in
one complex as they want or is there a limit. If they are
allowed, sooner or later they would have control over the
board and the complex and be able to change our documents and
about anything else they want, forcing other owners to sell.
common theme today is – unless the governing documents
provide otherwise. There is no restriction in the law as
to how many units in a complex can be owned by the same
person. Perhaps you may want to suggest to the board that they
bring forward an amendment to the Declaration to restrict the
number of units that can be owned by one person or entity.
Absent such a provision on your Declaration, there is nothing
which addresses the number of units one person can own.
am a member of a condominium association. The Board has
recently taken action on matters that I do not agree with. I
have sent a letter to the Board of Directors advising the
Board members of my concerns. I have requested that the Board
read my letter at the next board meeting and make it part of
the minutes of that meeting. I thought there was a law that
is no requirement that the Board of Directors read into the
minutes of its board meetings correspondence it receives from
you are referring to the statutory provision that allows
members of the Association to present a petition signed by
twenty percent of the total voting interests of a condominium
association to have the Board of Directors address an item of
business at a board meeting. It is important to note, the
requirement to discuss an item of business at a meeting if 20%
of the membership presents a petition does not require that
the Board act on the item of business beyond permitting the
discussion of such.
are not familiar with any other statutory provision which
requires the Board of Directors to discuss matters at the
direction of a member or members of the Association at a Board
a normal board meeting of a condominium association is a sign
in sheet required for the unit owners in attendance or is this
only required at a members meeting?
sign in sheet is not required nor prohibited unless your
governing documents require otherwise.
thanks for the great information you provide. My first
question is we live in Fort Lauderdale. We have 312 units.
Does the association have the responsibility of providing
handicapped parking spaces? Number two does our association
need to take a vote on spending one third of our reserve for
non- essential lighting. Thanks greatly appreciated. Joe
association does not have an obligation to provide handicapped
parking other than what is required by the law. More than
likely your municipal code enforcement department would be the
proper authority to answer this question.
funds on deposit for reserves must be used for the purpose for
which they were collected. A vote of the membership is
required in the event the board wants to use the funds for a
purpose other than the purpose for which the funds were
collected. The alternate use of the reserves must be approved
by a majority of the eligible voting interests present at a
membership meeting of the association at which a quorum is
a question that was asked on1-31-18. One of the reasons for a
board closed meeting is for personal reasons. Can you give a
few examples? It is hard to visualize a board required to
manage a condominium that would have a "personal"
reason, especially because the first reason does not allow a
meeting of legal matters w/o an Atty present.
reason you reference for the closed meeting was not for a personal
matter it is for a personnel matter. Definition
a body of persons usually employed (as in a factory or
a division of an organization concerned with personnel
the board is meeting specifically to discuss the performance
of a person employed by the association, the board may have a
closed meeting if the subjects to be discussed should not be
for an answer concerning a grandstanding director on a POA
board. This person constructs handouts, flow charts, and takes
the floor during the open question period, hands out the info
to the owners, questions the agenda, and refuses to follow the
boards decorum. I think its Roberts Rule violation of order,
but I'm hardly a parliamentarian.
Board members do not have any more authority than that which
has been granted by the Board. Each board member is required
to limit discussion at meeting to items that are on the
agenda. In the event a board member would like to take on a
special project or discuss something at a meeting, the board
member should request that the Chair (or the board by vote of
the board at a meeting) to add the item to agenda. If the item
is not on the Agenda – the Chair should require that the
discussion be tabled. Robert's Rules of Order, which has been
used to run meetings from condo association boards all the way
through the United States House of Representatives, provides
several clear guidelines for how to keep debates civil and
respectful. Robert’s Rules suggests that the following be
observed regarding meeting decorum.
the Question: Board members should
limit their debate to the question at hand. Avoid raising
issues long past or that have already been decided by the
board. By focusing on one issue at a time, homeowners
associations avoid speaking poorly of their fellow
neighborhood board members when they disagree with a decision
already made. Instead, focus your debate on the merits and
challenges of the proposal at hand. Only when that issue has
been resolved with a vote may board members raise new issues
the Issue, Not the Member: Robert's
Rules put the focus on the issues, not your fellow board
members. Even when you strongly disagree, board members should
avoid attacking the person and instead focus on the issue.
Board members should never make debates personal. Debate
decorum mandates that any personal attacks be addressed
promptly. If a board member's disorderly words would insult or
offend another board member, the board of directors should
vote to require the disorderly board member to apologize.
the Chair: Often, in the midst of
debates, the chairperson of the board of directors may need to
interject with points of order, process, or other procedural
issues. Board members should never interrupt or speak over the
Chair. Instead, if you disagree, let the chairman finish and
then raise your objection. The chair also serves as a buffer
between board members. If you have a question for another
member of your community association board, that question
should be directed at the chairperson, who can then ask for
clarification from the member in question.
decorum is essential for a smoothly run community association
board meeting. It allows the chair to make sure members are
treated with respect, and issues are handled in an orderly
fashion. By following Robert's Rules of Order, board members
can maintain friendships with one another and address
controversial issues with courtesy and respect.
condominium association board has imposed a fee of $1000 per
year upon any owner who wants to rent his unit for any amount
of time during the calendar year. The Board did this without a
vote going to the membership.
collection of a fee for simply having the privilege to rent a
unit is not allowed under Florida law, even with a vote of the
membership. In fact a fee for any transfer, whether it is a
sale or a lease may not exceed $100 per occupant, although
only one fee of $100 may be collected for a husband and wife
or a parent and child. If the governing documents permit the
approval of a tenant or a sale, a fee not to exceed $100 per
occupant may be charged in conjunction with the lease approval
application. Some governing documents permit the collection of
a refundable deposit to ensure that the tenant does not damage
the common areas or association property. Rental restrictions
are enforceable as long as they are authorized by the
governing documents and provided there has been uniform
enforcement by the association of the restrictions. If the
governing documents do not authorize the payment of an
application fee or the collection of a deposit to cover
damages by the tenant to the common area the Board may not
collect either fee.
note – there is liability to the association if any amount
in excess of $100 is charged when there is a sale or a lease,
regardless of who is charging the fee. The Board needs to
verify that the management company is not charging in excess
of the amount prescribed by law and the fee is inclusive of
any costs for background and financial information.
Board president recently entered into a contract with a cable
provider for a new term without the vote of the owners. Do the
unit owners have any say in the matter if we are signing a
$500,000 contract for a seven-year period?
the condominium documents so provide, the cost for
communication services such as Internet or cable TV may be
considered a common expense. If the documents do not make such
a provision, the board of directors has the authority to enter
into a bulk contract for these services as long as the
contract is for a minimum term of two (2) years. The charges
must be allocated equally per unit even if the unit owners do
not share the other expenses in the condominium equally. The
unit owners do have an opportunity to vote to cancel a bulk
contract that the board entered into if it follows the
procedure outlined in Chapter 718.115 (1) (d) 1 of the Florida
Statutes. The motion by an association member to cancel a bulk
communication services contract must occur at the next regular
or special meeting of the members (not a board meeting)
following the contract’s approval by the board. The annual
meeting would be an example of a members meeting where any
association member may make a motion to cancel the contract.
If the motion is not made at the first members meeting
following the ratification of the contract by the board, if
the motion fails to get a second, or if it fails to pass by a
majority of those in attendance at the meeting, the contract
is ratified for the balance of its term.
board entering into any contract without having the contract
reviewed by its attorney is subjecting itself to personal
liability if there are provisions in the contract that are
contrary to what is allowed under the law. It has come to our
attention that some cable providers are negotiating contracts
with management companies that are being presented to the
board as a one size fits all provided no changes are made This
in essence is putting the board in the position of entering
into a contract on the advice of management without the proper
legal review. The management company must fully disclose that
it is receiving a payment directly from the cable provider
when the community enters into such contracts.
assessment fees be placed on a condo AFTER the owner's death?
Unit is responsible for its proportionate share of the common
expense assessments, including special assessments and
reserves, regardless of whether or not the Unit owner is
alive. In the event the Unit Owner is deceased and the
deceased affairs are not being handled by the Estate, the
Association would have to pursue collection of the unpaid
question is: There will be two vacant positions for the Board
of Directors available at our condominium community's next
election. Are two sisters eligible to run for a condo board
position when the one sibling is a tenant in the other
sibling's unit? There are two other candidates running for the
there are not sufficient candidates for the seats available
AND the Bylaws have a provision that a non-member can serve on
the board – the sisters can both serve on the board. If,
other than one of the sisters, there is the same number or
more candidates for the board as open seats, then only one of
the sisters is eligible. The tenant sister would not be
eligible in any circumstance if the bylaws did not provide
that a non-member can serve on the board.
have an owner in our 20-unit condominium who has recently put
surveillance cameras in his window pointing at the common
area. The owner is secretary of the association but is seldom
here. These are not security cameras approved by the board;
they were installed by a private owner who is observing the
common area for his own purposes. We are not in a high crime
area - the closest thing we had to a crime in the last 10
years was broken window from a baseball. And the kid paid up.
Our community is a mixture of permanent residents and seasonal
renters. Many of the other owners and renters are
understandably upset at being under constant remote
observation. Some of the renters who return year after year
have threatened that they won't return unless the cameras are
removed. This affects the livelihood of the owners who lease
their units. Several owners, including me have written the
board asking for this to be addressed but I am wondering if
the board actually can force this owner to remove the cameras.
Thanks for a terrific website...you've clarified some murky
points in Florida law.
is no expectation of privacy within the community. While it
may seem intrusive for this unit owner to film the community
through his window – there is nothing in the law to prevent
this activity. Perhaps you could explain your concerns to the
owner and ask the owner to voluntarily remove the cameras.
the section 718.3026 of the Florida Condominium statute it
refers to getting bids where over 5 percent of the annual
budget "including reserves" is exceeded.
that mean if an item or service exceeds 5 % of the annual
budget including the funds to be added to reserves, bids are
needed? Or does it mean if the total of the annual budget plus
the gross amount contained in all reserve accounts is over 5%
bids are needed. That is a very material difference. Can you
explain what the statue's intention is referring to reserves?
you for your help and consideration.
law is referencing the annual budget that includes the
operating funds and reserve funds collected in that year only.
It is not referring to the gross reserves that have been
accumulating. One note on obtaining competitive bids – the
law only requires competitive bids – that could be two -
unless the governing documents require that the association
get 3 or more bids.
live in a 432-unit high rise Condominium. Our Board meets
daily to discuss business. Minutes are taken. My question is,
if an owner wants to see a copy of these minutes, must we
redact information discussed behind closed doors about other
unit owners or discussions with legal counsel?
am perplexed. Why is the board meeting daily to discuss
business? Any time a quorum of the board meets to discuss
association business – the law requires the meeting to be
posted and open to the residents. The only meetings that the
board is permitted to have without the owner's present are
meetings with the Association's legal counsel to discuss
threatened or pending litigation or a meeting to discuss a
specific personnel issue with an employee of the Association.
Personnel issue does not include discussion about a unit owner
or a vender. I would strongly recommend that the board never
meet behind close doors and I would also recommend that the
board not meet daily.
and thanks for this great forum. Our board is going to have a
closed Board Meeting to discuss personnel issues. Owners are
not allowed to sit in on this meeting. I did look up to see if
it was legal and it is. It also said that an attorney must be
present if discussions on pending law suits were to be talked
about but wasn't that clear on if they have to have an
attorney present when talking personnel issues. Do they need
an attorney present or on the phone if they have a meeting to
discuss personnel issues?
the Association is not required to have the attorney attend a
meeting about a personnel issue. Please note – these
meetings must still be noticed pursuant the law and / or the
bylaws even though the meeting is not open to the public.
Association decided to put a new roof on my building before I
became an owner. Am I responsible to pay for this roof if I
did not own the condo before this decision and repairs were
the roof assessment was done by a special assessment, or was
proposed or pending – the association was required to advise
you, thereby giving you the opportunity to negotiate with the
previous owner regarding the price for the unit in light of
the assessment. In addition, if it was done by special
assessment, if the vote for the assessment did not require a
selling owner to contribute his or her pro-rata share in full
– then you would be required to continue to pay the special
assessment. If the roof was leaking would you have purchased
the unit? You are responsible for the assessments for the
upkeep of the building regardless of when they occurred unless
there is something in the vote for the assessment that states
the previous owner is responsible prior to transfer of the
you for all of your answers to the many questions raised in
the past. Regarding Board elections and candidates running for
a Board, would you be able to advise whether an Association
could legally require the following information from all
candidates, in order to ensure that unit owners had a better
understanding of any prior actions that might be viewed as
the interest of full disclosure, any candidate for the Board
who has been convicted of any felony or who has been alleged
in any legal proceeding, whether civil or criminal, to have
committed fraud or theft, is required to disclose to all unit
owners the specific charges on which the conviction rests, the
sentence or penalty, if any, and/or the identity of the
parties and the specific language of the complaint alleging
fraud or theft, within twenty-four hours of announcing his or
again for any advice you could provide.
is nothing in the law requiring a candidate for the board to
submit any personal information and a candidate cannot be
required to conform to such a request. The law does prevent a
person convicted of a felony who has not had his or her is
civil rights restored for a minimum of 5 years is ineligible
to serve on the board. The board could add a statement on the
intent to run form advising potential candidates of the law
you can help with this condo question. We are a condominium
160 units. We just had an election for 5 seats on the Board. 6
individuals ran for the 5 Board seats (not specific positions
of the Bd.). However, BEFORE the ballots were opened, one of
the 6 individuals dropped out of the race in writing several
hours before the 5:30PM day of the election. My understanding
from the Fl. Statues is that because of this occurrence, no
election is therefore necessary. The ballots do not have to be
opened. All remaining 5 candidates are automatically elected
to the Board. My question is given the above circumstances,
how does the Board determine who holds the specific seats on
the Board. In all the years past, the person with the most
votes became President and the remaining positions were
decided amongst the Board Members.
do we FAIRLY and with the wishes of the homeowners in mind
decide who becomes president if the ballots are not counted?
there any existing Fl. statute that can be cited to ‘convince’
the Board to open the ballots? Note: A motion was made on the
day of the election to open the ballots but was not seconded.
you for your much needed online services.
ballots in an election that does not occur because a member
removed his or her name as a candidate when there were 6
candidates for 5 positions should NOT be opened. Furthermore,
unless the bylaws provide otherwise, the officers are elected
at an organizational board meeting by the directors. Your
board correctly handled the ballots for an election that did
not occur because the number of candidates equaled the number
of open positions.
Board President recently revoked the Unit Owner Committee
Charter that was established to review violations issued by
the Board. Can the Association still issue violation letters
even though there isn't a committee in force to hear owner
objections? Would our documents outline the requirements or
the Florida statute? Thank you very much for your time.
law prevails – and the law does not require a committee to
hear objections to violation letters. The law requires a
committee of members that are not related to or living with a
board member to hear objections to fines imposed by the board
of directors. 718.303(3)(b) states that a fine or suspension
may not be imposed unless the association first provides at
least 14 days’ written notice and an opportunity for a
hearing to the unit owner. Said hearing must be held before a
committee of other unit owners who are neither board members
nor persons residing in a board member’s household. If the
committee does not agree, the fine or suspension may not be
condo board levied a "loss-assessment" based on
Section 627.714 of the Florida Statutes which states that
every condominium owner's insurance policy "must include
at least $2,000 in property loss assessment coverage to which
a deductible of no more than $250 per direct property loss
applies." My Insurance is a commercial policy and doesn't
cover "loss-assessment" claims. The letter from the
board directs owners to file a claim and follows with these
instructions, "After the claim is processed, you will
receive a check for $1750.00 from your insurance. Once you are
in receipt of the insurance funds, please mail your check for
$2,000.00 made out to our above address. The assessment will
thus cost you the deductible of $250 only." Since my
insurance doesn't cover "loss-assessments" what is
my recourse? I will never receive the $1750.00 from an
insurance company. Do I still have to pay $2,000 to the
association? If so, what is the timeline when I must perform?
Thank you for all you do. Your answers are quite helpful to
are still responsible to pay the assessment. You could have
selected a policy that is in compliance with the requirements
of the law –and the fact they you chose not to have such a
policy does not excuse you from paying the assessment. The
association does not have the authority to change the
proportionate share of assessments without the affirmative
vote of 100% of the members.
tried searching for two items but perhaps my search terms were
not correct. I've been through Statutes 718 and 720 as well as
combed through Google, Bing, and other search engines.
Everyone discusses whether a board can approve or deny an
application but never how long they have to do it. I also
found that Florida statute requires a 7-day answer to an
active military applicant. There must be a corresponding time
I believe years ago I read in a FL statute that the condo
association board has X weeks to approve or decline
applications to purchase and rent. I believe the purchase
limit was two weeks and the rental was one week. If no action
is taken within this time period, then the purchase or rental
is approved. Can you advise me please?
If the condo by-laws and house regulations and rules do not
state that a new owner must own the apartment for one year
prior to being able to rent it, can the board make a new
binding rule to this effect?
they did take a vote and make a rule, does it have to be filed
and approved by the Florida Attorney General's office or other
relevant agency first before being effective?
is usually a timeframe provided in the Declaration for
approval to be given within a number of days after the receipt
of a correctly completed application. Absent that we would
advise that an association cannot merely fail to respond and
thereby prevent a sale or a lease. There are some ordinances
in some municipalities that address claims for discrimination
that state the approval or denial must be received within 45
days of the receipt of a complete application. Each situation
is different and there are difference circumstances that must
be considered. At a minimum it would be reasonable for the
Board to adopt a policy of rendering an answer with a
timeframe not to exceed 45 days.
regards to your second inquiry, a rule cannot modify the
Declaration and any restriction on rentals must be
accomplished through an amendment of the Declaration which
would require a vote of the unit owners to ratify and any
owner that does not vote or votes no to an amendment that
requires that a unit not be rented in the first year of
ownership would be grandfathered and would not have to abide
by this restriction if they are still within the first year of
ownership. Any owner that purchases after such an amendment is
ratified would be required to wait one year to lease.
an individual board member give the authorization to send out
a limited proxy vote to the owners on a matter, or does it
require a board action to send out a limited proxy vote to the
board member cannot act independent of the board of directors
to pursue a vote of the membership unless the board member was
given that authority at a duly noticed board meeting by a vote
of the board of directors. Very often individual board members
do not realize that they cannot act independent of the board.
An individual board member may not attempt to advance his or
her own agenda and should work together with the entire board
in the best interest of the corporation. Very often emotions
get in the way and individual board members fail to remember
that they are elected to tend to the business of a
have a question about mailed voting. We recently had a vote
about changing from common area keys to key fobs. The night of
the Board meeting (Condominium) the vote was in favor of not
changing and lost by only 1 vote. After the results were
announced and the meeting closed a member who didn't like the
outcome was given a copy of the unit owners votes results. She
then solicited by cajoling two members who voted no by not
sending in their vote to vote yes.
it legal to continue getting votes after the ballots were
counted, the results announced, and the meeting adjourned?
When must voting stop? And thirdly, after one of the cajoled
owners thought about what had happened, she wanted to change
back to a no vote. She was not allowed to. How should this
have been handled?
are some variables here – that prevent me from giving a
definitive answer. Without having all of the details as to
notice, type of voting instrument provided, etc., I cannot
answer this question as to the specifics of what occurred in
your association. Generally speaking once a meeting is
adjourned – without being postponed to a date certain –
there should not have been additionally votes taken. If the
meeting was postponed to a date certain, more than likely
additional votes could have been sought. In the event the
votes were being taken via written consent – the deadline
for securing all of the votes is 90 days after the first vote
was received. If the matter was being voted on at a meeting of
the members – a proxy is valid for 90 days and the meeting
could have been postponed to a date certain at the meeting
which may have allowed for more votes to be secured. It would
be prudent to inquire as to why the additional votes were
counted as there may be a logical explanation.
and thanks for your response in advance. Our HOA, (homes, not
condos), currently has a budget item for $50 a month per
homeowner for cable tv. The HOA board recently discussed at a
meeting, not renewing the bulk cable contract when it expires
in March of 2018, due to the fact that individuals who did use
cable could negotiate lower costs on their own and home owners
who did not even use the same provider would not have to pay
that fee. There was a vote of the board and they decided to
not renew the contract. All fine so far. However, they have
now released a copy of the budget for 2018 and the budget
includes the line item $50 cable fees for the entire year.
When questioned, as to why the $50 a month was not removed as
of March, they responded that they intended to keep the $50
and use it for other purposes at their discretion. This is
contrary to the original argument as to why to not renew the
contract. Now, instead of a $50 savings a month which the
Homeowner can use to obtain the cable services of their
choice, they will continue to pay the $50 and have to obtain
their own cable service which will be an increase to the
Board has a fiduciary duty to present an accurate budget.
Therefore, the cable fees should be collected through March.
If the board wants to budget an additional $50 per month after
the cable contract ends, it should present a budget with a
line item identifying the purpose for which the funds are
being included in the budget.
own an ‘office’ condo in an 84-unit office park in Fort
Myers. The Board at the last annual meeting indicated it did
not have to establish Reserves as it can be waived annually in
the condo docs of this Association, which was established over
20 years ago. I know there has been questions as to whether
‘commercial’ condo associations fall under the same law as
residential condo’s? Thank you!
2014 The legislature made statutory changes throughout Chapter
718 for the purpose of differentiating between residential and
commercial condominiums. Changes
included excluding commercial condominiums from the following:
The duty to respond to written inquiries;
The restriction on using general proxies;
Certification of director education or qualification to serve;
Sprinkler retrofitting requirements;
Mandatory arbitration; and
Hurricane shutter requirements.
a provision of Chapter 718 is meant to exclude commercial
condominiums, that provision will be proceeded with "in a
residential condominium", otherwise the provision applies
to both commercial and residential condominiums. For example,
the insurance provisions of Chapter 718 do not apply to
commercial condominiums as it specifically states "in a
residential condominium". As to whether or not your
commercial condominium is required to establish reserves, it
appears that it is the intent of Chapter 718 to require such,
but the association’s accountant or attorney would be the
best source for an inquiry as it relates to a specific
condominium ad its governing documents.
live in a very large condo community. Can the management
association REQUIRE the monthly fees to be directly debited
from my account? I am NOT comfortable with this and suggested
that instead, I pay quarterly in advance. They replied that
the fees are required to be debited automatically. Is that
is unlikely that a management company could require you to pay
by direct debit. Perhaps this is the preferred method for the
management company to collect fees, but it is doubtful that
such a requirement is in the governing documents. Ask the
board to provide you with its rationale for
"requiring" such and also with an alternative to
providing payments via direct debit.
have hit the jackpot – we have a problem with a board member
and another owner who both become argumentative, loud, abusive
and threatening to the point we are in fear of violence. We
are then obliged to end the meeting abruptly.
recourse do we have?
disruptive unit owner or board member makes everyone's life
miserable. In fact, even if he or she has a good idea - very
few board members will listen because of the frequent
outbursts. Often this is the guy who stands up and quotes 718
in part but never in the right part!
thing that can help is to provide your board with a primer on
condo law. There are several good ones available and your
property manager can probably help you find one. This is a
preferably method for the layperson to avail themselves with
enough understanding of the law to be able to perform the
duties of a board member. Additionally, rely on your property
manager and association attorney to fill in the blanks or to
deal with difficult issues.
are things the board can and should do to avoid confrontations
such as this, since these outbursts serve no real purpose and
are rarely the catalyst for the change the unit owner is
seeking. This person feeds off confrontation and the reaction
that others have to his or her outbursts. There are several
things that may help diffuse the situation. The most important
thing is to remain calm and not let him or her get you to
shout back. I know it sounds easier than it may be at first -
but remember - you cannot control this person, only your
board must put policies in place to distance themselves from
the unit owners in regards to board matters. A board member
must not answer questions if they are approached outside of a
board meeting as then the board that board member is acting
independent of the board. All board business should be
discussed at a board meeting with an opportunity for the
entire board to consider and vote on issues.
there is a community association manager, he or she should be
the point person to discuss issues with the owners. If the
person has a legitimate request for information, try to make
sure he or she is given that information before the meeting.
often, this person can be controlled if you get to the
"real" basis for the outburst. As a board member-
you are not expected to delve into his or her deep-seated
issues - but it may be something obvious and easily resolved.
Does he or she feel that the community in some way slighted
him or her? Was he or she not invited to assist in preparing
for a community event? A real pro can turn a negative into a
positive if they can get to the basis for his disruptive
behavior. It may be as simple as being denied a request to
paint a mailbox. Explaining the basis for the denial may calm
things down. If this person thinks the meeting notice should
be posted in the mail room of every building - not just on the
main bulletin board - give him the necessary copies and thank
him for offering to post the notice himself. In other words
– don't sweat the small stuff.
said, - this person has probably been difficult most of his or
her life – so remember this, he or she has years of
experience and is very talented when it comes to upsetting the
apple cart. Try to remember the good people in your community
who truly benefit from your sacrifices and show their
appreciation. After the next board meeting - take the good
guys in the community home in your thoughts - and don't give
this person any more power over your free time.
you for on-going support of the people in Florida in
understanding the condo statutes and by-laws. I very much
appreciate what you are doing.
questions are regarding Board elections and terms:
Our condo by-laws state that "Any Unit Owner or other
eligible person desiring to be a candidate for the Board shall
give written notice to the Secretary of the Association not
less than forty (40) days prior to the scheduled election.
What does this mean and who is considered an eligible person?
I could not find any other information on who is considered an
"eligible person" in the rest of the by-laws? 2) Can
a child (of a unit owner) over the age of 18 run for the Board
if she is not on the title, her parents are on the title, but
she resides in the condo (the condo is her full-time
residence)? 3) The new July 1, 2017 statute limits Board terms
by indicating that Board members are serve a maximum of 4
two-year terms. Does this mean a total of 8 years regardless
of whether a condo has 2 or 1-year terms for Board position?
you for the kind words and great questions. 1) Unless other
eligible person is defined elsewhere – I would interpret
this to mean a Unit Owner that is not delinquent in the
payment of a monetary obligation. 2) "Unit owner" or
"owner of a unit" means a record owner of legal
title to a condominium parcel. A child or resident of a Unit
Owner is not eligible to serve on the board unless the bylaws
specifically permit a non-owner to serve on the board. Very
often the bylaws may say a Unit Owner or Spouse of a Unit
Owner is eligible to serve on the board. 3) The limitation on
service of no more than four terms is specific to two-year
terms. Unless the law is clarified to address this, board
members elected to one-year terms are not affected by this
blog is fantastic and very informative. I reviewed all of the
questions and answers and don't see a question that quite fits
our condo community. Our bylaws allow for 3-5 board members.
Our current board of 3 members are all serving a one-year term
and their term expires on October 31, 2017. Only one condo
owner submitted her nomination for the Board of Directors by
the deadline. None of the current board members have interest
in continuing to serve on the Board. Myself and one other
owner in the community have interest in being on the Board,
but did not submit our nomination by the deadline. My question
is can the one nominated board member appoint other board
members to ensure that we have the minimum 3 members on our
the bylaws have a method to determine the actual number of
board members (such as the board shall consist of 3 to 5
members as determined by the board prior to the election) the
law provides that the number of board members defaults to
five, unless there are only five units, in which case the
number defaults to three. In a condominium election, if the
candidates that submitted an intent to run are equal to or
less than the positions available, balloting is not required.
In your situation there is one candidate for three positions
There will not be an election and the one candidate will be
appointed to the board upon expiration of the current board
member's terms. Thereafter, the one board member has the
ability to appoint two more members to serve on the board.
require that all persons running for board be an owner of
their unit. If the unit is held by two or more persons, a
statement must be signed by all owners of that unit that they
appoint that particular person the voting representative
(interest). This person holds an expanded life estate deed.
The owner of the unit was alive at the time that this person
filed to run for the board (therefore he was not the owner)
and though the "life estate" is held by this person,
it is held with another relative. There was no statement
signed by either the owner (who has since died), nor the
person that holds the "life estate" with this
person. In an attempt to notify the other inheriting party, we
find that the information regarding that person was not given
correctly either. What action should this board take?
voting representative and a board member are two separate
issues. Many condominium bylaws require that owners designate
one person as the voting member when a unit is owned by more
than one person or a corporation. The bylaws may also require
a valid voting certificate on file in the association records.
A voting certificate does not determine that the holder of the
certificate is the only owner that may be a board member.
Florida law does not specify that individual board members
must be members of the association, most bylaws will specify
who is eligible to serve on a board. The person with a life
estate enjoys all rights of ownership, except for the ability
to convey the property to another beyond the life estate.
Therefore, the person with the life estate has full control
and all rights as the current owner.
there is something specific in the governing documents that
forbids a life estate holder from serving on the board, this
person may serve. The board should review the bylaws of the
association to determine if any provisions have been violated.
In the event that this person is not eligible to serve, the
board should require that he or she step down. If the board is
not comfortable making the determination on its own, it should
consult the association attorney.
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.
own a condo in a 12-unit complex. There are 5 units that have
their own hot water heater. There are 7 units that use the hot
water from 2 separate water heaters for their hot water usage
for their own unit. Three units use this hot water from one
water heater and 4 units use the hot water from another one.
Are we allowed as a board to request some kind of payment
towards the electricity that is being used for the entire
year? If so, how does one figure out the cost per unit. Most
of the 7 units are equal in size.
the Declaration of Condominium has a provision for charging
the owners that use the common hot water heaters for
"electric" it is unlikely that the board can apply a
charge to the users of the common water heaters. Furthermore
– a change in the proportionate share assigned to all unit
owners would require a vote of the owners and would require
100% of the membership to vote yes to the amendment.
recently became president of my BOD, within 20 minutes of the
bulletin board announcement my BOD and I received abusive
emails that contain abusive verbiage from our previous
president which had resigned few months back. I had requested
that the BOD would not reply. However, the emails kept coming,
my question is - should we expose this person and share the
emails with the owners?
my opinion – abusive emails and negative social media posts
are weapons used by difficult people to intimidate others.
There is nothing requiring a board member to receive emails
from an abusive member and my recommendation is that you
notify this person that you will block his emails and any
further correspondence to the board will only be accepted be
via certified mail directed to the management office. If you
respond or react you merely continue the discussion and very
often this is really what the difficult person wants. It is
tough to be a volunteer on a community association board. It
is unfathomable that anyone should have to take abuse because
of their desire to serve on the board.
questions is, I own a unit and have a buyer ready to close.
She was not approved by the board because her credit score was
under 700. The board approved me with a 660 credit score a
year ago and approved others with scores under 700. When I
contacted the management company they told me that the info
regarding the 700-credit score is on the application and the
board just decided a few years ago to put this in force. Can
this be challenged because they did not put it as an amendment
or take a vote? Also, it says in the documents that if the
board rejects a buyer it needs to provide a buyer that it will
accept within 30 days. The manager says that this does not
apply to me. He will not give me an answer as to why not. It
is in the documents. I really need the money from the sale.
Thank you for your answer.
Association that has the authority granted to it under its
declaration to approve sales and rentals should apply its
criteria for approval consistently. In the event it is not
applying its criteria consistently it is subjecting itself to
being challenged. There may be a miscommunication regarding
the interpretation of the provisions in the declaration. The
best way to move forward, is to put your request for a
response in writing as to the association's responsibility to
provide a substitute buyer and request that the association to
have its attorney respond as to the requirements and
obligations of the Association under its Declaration as it
relates to the sale of your unit.
condo association passed a 20% rental limit on 2006. At the
time of the vote, I did not vote in favor or against it.
Question is: am I bound by the association 's amendment or am
not? I have heard conflicting opinions. Thank you for any
input you could provide.
v. Jahren was ruled upon by The Florida Supreme Court in 2002.
A condominium in Clearwater amended its declaration of
condominium to prohibit the rental of your unit to no more
than nine (9) months in any twelve (12) month period. Mr.
Jahren had been renting out several of his units for nearly
twenty (20) years and he sued the association, seeking a
ruling from the court that this amendment was illegal because
it took away a vested right he had to rent his unit all year
long. The Florida Supreme Court disagreed. The Florida Supreme
Court opined that if a super majority of owners in a
condominium can finally agree on something, the courts should
not stand in the way, unless the amendment violated a
constitutional right of an owner. Since there was no
Constitutional right to rent your unit, the amendment which
limited rentals was affirmed by The Florida Supreme Court. In
response to what some viewed as the injustice of this case,
the Florida Legislature passed the following law in regard to
condominiums only: FS 718.110(13) Any amendment restricting
unit owners' rights relating to the rental of units applies
only to unit owners who consent to the amendment and unit
owners who purchase their units after the effective date of
that amendment. Therefore, as of 2004 if your declaration gave
you the right to rent your unit, that right could not be taken
away from you during your ownership, unless you specifically
voted in favor of such an amendment to your declaration of
condominium. Owner's that abstain from voting are did NOT vote
in favor of the amendment- therefore they are not subject to
owners who voted in favor of the amendment or who purchase
after the amendment was passed are subject to its limitations.
a board member resigns after being served with a recall
removal but, before the five days expire for a reject or
accept meeting, is this board member officially
"recalled" or "resigned?" No meeting was
ever scheduled or held.
conduct business at meetings. The resignation occurred prior
to the meeting be held. Therefore, the board member resigned
as the recall was not certified prior to the resignation.
live in a 514 unit Condo in South Florida. After the 2006
hurricane Wilma, we installed Electric rollup shutters and
obtained approval from the Board of Directors, the Management
Company and the City prior to installation. The building also
installed hurricane glass and doors in all units at that time.
Now in 2017, we are receiving a letter from the current Board
and Management company that we must remove the shutters on our
balcony due to concrete balcony repair or they will remove the
shutters and bill us for the work. This would be very
expensive to have these shutters removed and again reinstalled
it possible or purchase new ones for the balcony.
Can the current board revoke their prior approval as well as
ignore that of the city inspector and make us remove the
facts suggest that the board has revoked approval for your
shutters – when it appears they are merely advising that you
in order to complete necessary repairs, it is required that
the shutters are removed. The exterior building repairs are
required and in order to complete the repairs the association
has advised that your shutters must be removed. Cooperation
from you as a unit owner, that was given permission to attach
your shutters to the exterior of the building, is required.
Communal living requires cooperation – the shutters will
have to be removed in order to repair the building. You are
suggesting that a city inspector has advised otherwise.
Removing your shutters probably has nothing to do with the
permitting process and it is not within the scope of the city’s
authority to advise you that you are not required to remove
the shutters. More than likely, the company that is contracted
to complete the concrete restoration is requiring the removal
of the shutters. You are required to remove and replace the
shutters, at your expense.
have a signed contract to purchase a Condo in Broward County.
We’ve been approved for the mortgage. We submitted our
application to the condo Association and have since been
denied. The only reason given was "refer to the consumer
report" and nothing more specific. We heard, verbally,
after the fact that the association requires a minimum credit
score of 720, my score is 662. My question is as follows. Do
the requirements for purchase, such as minimum credit score or
other reason for denial, need to be told prior to submitting
an application and or in the Associations By-Laws, Rules and
Regulations, and or Condo Docs? Something, somewhere so that
we would have been informed prior to paying an application
fee, paying for an appraisal, and paying for an inspection! We’re
out almost $1000, had we known about a minimum credit score
requirement we never would have made the purchase contract in
the first place! not to mention the down payment sent with the
order to approve or deny sales, the authority must be included
in the Declaration. If the authority is not included in the
Declaration, the Association cannot deny your purchase. The
Association is likely permitted to develop criteria to be used
when considering an approval. Not to rub salt in your wounds,
but you could have requested that association provide you with
the criteria it uses to approve or deny sales before you
submitted your application. If the authority to approve or
deny sales does not exist in the Declaration, or it the
Association has not consistently applied its criteria to every
sale, the owner of the unit can challenge your denial.
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 126.96.36.199.4, of the Life Safety Code. It
is clear in section 188.8.131.52 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.