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By

Chelle Konyk, Esq.

Last Updated 10/02/2021

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Chelle Konyk, Esq., (www.LawKL.com) is a Florida licensed attorney with the law firm of Konyk & Lemme PLLC. Konyk & Lemme PLLC assists Homeowner, Condominium and Cooperative Associations throughout Martin, Palm Beach, Broward and Miami-Dade Counties in general legal matters including bulk rate cable TV and telecommunications. Chelle is rated "AV" by the U.S. Peer Review Rating Service of LexisNexis Martindale-Hubbell, which defines an "AV" rating as "a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence." The information obtained from this site is not legal advice nor does it establish an attorney client relationship pursuant to Rule 5.7 of the Model Rules of Professional Conduct.  


 To submit a question to the Condo News for Ms. Konyk, email betty1941@bellsouth.net


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(9-23-21)

QUESTION:

Our board of directors does not ask the association attorney to review contracts? Is this something we should be concerned about?

ANSWER:

To review, draft, or be substantially involved in the preparation or execution of contracts is the practice of law. These tasks cannot be delegated to management OR the board.

The board must recognize the importance of its members avoiding personal liability. One area that is often overlooked by association directors is the review of contracts. Often this is done in an effort to "save" the association money. Our experience proves that it is imperative that the directors get a legal review of most 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.

QUESTION:

We have been advised by management that a notice is now required by Statute before a delinquent owner can be turned over to the attorney for collection. For some reason our attorney has required a revision to the notice prepared by management before starting collections. This seems to be a waste of time – what is the issue?

ANSWER:

In our opinion the recent legislation has created an undue burden on management companies and associations. While most management companies are experts at what they do -they are being forced to perform tasks that should not be required of them.

Since the legislature made the required 30 day notice a condition precedent to proceeding with collection of past due assessments – this notice must be prepared without error, or the collection efforts may not proceed.

Most management companies have programs in place to send out late notices to delinquent owners. A small percentage of those receiving late notices ever end up being sent to the attorney for collection. One of the issues with the required statutory notice is that it is not conducive to mass production as the statute contains a "form" that must be substantially used and the software that management companies use often cannot perform the complex calculations required when adding interest to past due accounts if an owner makes a partial payment. The legislature was attempting to solve a problem – but in our opinion this legislation has created issues that are far more egregious than anything that may have needed to be resolved.

A condominium association funds its operations by collecting assessments from the members – that’s it. The money collected must be sufficient to pay its bills. It is not fair to the members who are paying their assessments to have to contribute more because there are members who are not paying. I am not sure why the legislature thinks it’s essential to pass additional legislation to protect those owners who are not paying their assessments – when it should focus on protecting the rights of those that are paying.

It is unfortunate that some may lose their homes because they are unable to pay – but it is also unfair to expect the membership to pay for those that are not paying. Add to this the growing list of attorneys focusing on procuring legal fees by bringing actions against a management company for making a mistake. There are lawyers that are just waiting for associations to make an error – no matter how insignificant – so that they can proceed with action against the association that may end up costing the paying members far more in legal fees than the cost of a collection letter that a past due owner receives.

 

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(9-9-21)

QUESTION:

We just got a new Board president who thinks she can do whatever she wants. I do have a question about what a Board President can do. Can they approve $10,000 to be utilized for tree trimming without a board vote?

ANSWER:

Community associations derive their basic legal authority for their existence, activities, and actions from state statutes (laws), the administrative code and certain legal documents. In order to effectively manage a community association and inform and advise its owners, an elected and/or appointed group of people are expected to carry out their respective duties in a prudent and reasonable manner. Most association documents outline the legal and fiduciary responsibilities, this section will focus on some of the specific duties associated with each respective role.

BOARD OF DIRECTORS

Membership in community associations is mandatory. When you buy a house or unit in a community association, you are provided with a copy of the governing documents and a copy of the rules and regulations of the community and information on the association dues. All members must pay fees and conform to the restrictions of the association regardless of whether they have actual knowledge of these rules and fees or not. However, deciding to voluntarily serve the community and its members exemplifies a generosity of time and effort deserving of praise. A lot is expected of the leaders in any community association, starting with the officers.

After the general election of the Board of Directors by the members, the board of directors shall elect from among themselves the following officers; President, Vice-President, Secretary and Treasurer. The Board should also establish a process where specific board members act as liaisons to specific committees. The President, as CEO of the corporation, has as much power and authority as is granted to the president by the Board of Directors.

PRESIDENT – The President will serve to:

• Chair board meetings

• Act as a Liaison between:

• Management

• Board members

• Association attorney

• Be a signer of board-approved contracts, association checks, certificate of approvals, correspondence to the membership, etc.

• Prepares board meeting agenda for board review/approval

• Calls regular and special meetings of the board

 

VICE PRESIDENT – The Vice President will serve to:

• Support the President on an as-needed basis

 

TREASURER – The Treasurer will serve to:

• Present Treasurer report at board meeting

• Act as Financial Liaison

• Board President

• Accounting Personnel

• CPA

• Banking Institution

• Be a signer of association checks

• Review monthly financial statements and delinquency assessment report

• Work with accounting personnel to draft proposed annual operating budget

 

SECRETARY – The Secretary will serve to:

• Review draft of board meeting minutes (typically minutes are taken by management representative)

• Be a signer for documents such as annual report, banking, and/or miscellaneous documents that call for signature of Secretary

 

DIRECTOR – The non-officer Directors will serve to:

• Review board meeting package and present discussion/approval at board meeting

• Volunteer to assist with association committees and/or special projects

A community association combines the characteristics of a local government, a business, and a community. All three characteristics are necessary; the challenge is to create and maintain a successful and compatible team. Depending on the size of the community, it is often necessary to establish committees and/or employ the services of property management, legal, financial, or other experts in order to assist in the broad role and scope of the directors’ authority.

 

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(8-26-21)

QUESTION:

Is there a conflict of interest for the association that a member of the board to have an intimate exclusive relationship with the onsite property manager? This includes 95% of the business day together decision making/property concerns.

ANSWER:

I am not sure why that would be anybody’s business. We seem to lose sight of the fact that Board members are volunteers that are charged with more responsibility and liability than anyone should have to take on. It amazes me that people are still willing to serve on a community association board. If a board member breaches his or her fiduciary duty – that certainly should be stopped. But who a board member is "involved" with does not, in and of itself, rise to the level of a breach.

QUESTION:

I am a member of a board that is constantly attacked by a member of the community. He makes demands for seven years of records repeatedly, makes complaints to the Division that are unfounded and his emails are becoming more frequent and vicious. My entire board is fed up and we are about to resign – but for the fact that this person would likely get on the board by default. What remedies are available to the board. Should we ask the association attorney to bring legal action for defamation to make him stop?

ANSWER:

The association attorney does not represent the individual board members - or the owners. The association attorney represents the corporation. Therefore, if the individual board members want to pursue this dissident owner for defamation – they would have to hire an attorney that would represent them – something we would not recommend. If turning the other cheek doesn’t work perhaps you should attempt to elicit the support of the silent majority to voice their support of the board. I know for a fact that many boards spend countless hours on association business – and are still criticized by the vocal minority. I give these good people a lot of credit for sticking in out. Try to remember the good people in your community who truly benefit from your sacrifices and show their appreciation.

 

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(8-12-21)

QUESTION:

Our condominium is a small land condominium. Each owner owns their home and land. A homeowner has recently been flying a decorative flag.. We have specific language addressing signage in yards but currently our documents are silent on flags. Does 718.113 prohibit any flag but the American flag as defined by the statute, or if our governing documents are silent, can residents fly any flag they desire?

Thank you for any assistance in clarifying.

ANSWER:

The law is not intended to "prohibit" flags – its intent is to allow flags to be flown that meet the definition in the law. The Florida Condominium Act, Chapter 718, provides the right of unit owners to display a portable United States flag or the official flag of the State of Florida, the flags of the Armed Services, or the POW-MIA flag, regardless of the Governing Documents. Whether a unit owner is prohibited from displaying a flag, other than those mentioned in the law, is found in the rules and regulations enacted by the board or the Declaration.

QUESTION:

Hello, I have been reading your blog and am new to condo ownership. We just bought a condo on the first floor in Miramar Beach, FL. We learned that the condo is above a mechanical room. The mechanical room below provides a buzzing sound/or resonates on the floor of our condo. I have communicated with the manager and he suggested putting an area rug on the floor. I have a short-term tenant who just complained about the noise keeping her awake. It is a constant buzzing sound (like a loud refrigerator) coming from below.

It is my position that the association is responsible for this. Am I seeing this correctly and any suggestions on how to proceed?

 

ANSWER:

Unless the mechanical room was moved under your unit AFTER you purchased your condominium, noise remediation is likely your responsibility. Unfortunately – it is nearly impossible to shelter a unit from outside noise. There are shared walls and floors and the necessity for things like mechanical rooms, elevators, hallways, etc. Even amenities such as swimming pools and gyms contribute to "noise" that some find disruptive. It’s unfortunate that you were not aware of this "noise" prior to purchasing your unit. It is very difficult to isolate noise and to prevent it from traveling. It is for reasons such as this that communal living is not for everyone. Living in a condominium is far different from living in a single-family home.

 

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(7-29-21)

QUESTION:

A unit owner moved out of her condo and she did not sell her unit. She now has some people living in the unit and she says they are not renting. She comes back on the weekends to prove she still lives there. Our bylaws state you cannot rent your unit. How do we prove she does not live here? We have several unit owners who witnessed her move out and saw the tenants move in. Can you please give us some advice to bring to the board so they can take the necessary action? Please help us.

ANSWER:

The first step you want to take is to review your governing documents to see if the unit owner is violating the provisions that govern the length of time a unit owner may have "guests" in a unit. If there are provisions limiting unit owners guests in the governing documents and if those provisions are being violated the board could simply pursue this as a guest in violation of the the provisions in the governing documents. In Florida, this would require notice and an offer to mediate before the association pursued all legal remedies against the unit owner. Another suggestion would be to investigate further by looking into things such as any vehicles that are owned by the unit owner and her "guests". If this is a long-term rental, chances are the vehicles owned by the occupants of the unit will be registered to the unit address. If the guests have vehicles registered to the address of the unit that could establish that the occupants are permanently residing in the unit and that they are not guests. Perhaps the association attorney with the assistance of a diligent board can clearly establish the status of the occupants of the unit and pursue this first through meditation. This is not something the board should ignore or they may be unable to enforce this restriction against rentals in the future.

QUESTION:

I 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?

ANSWER:

You should first ask your neighbor if they are aware that the dog(s) 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 your municipality. The municipal code will outline the requirements for providing a complaint about the barking dog(s). 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 dog(s) 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.

 

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(7-15-21)

QUESTION:

We have a board member that has continued to serve on the board for more than 8 years – in spite of the fact that our management company has advised that he is term limited because the law was changed. Can he continue to serve?

ANSWER:

This has been a non-stop debate since 718.112(2)(d)(2) Florida Statutes included a limitation on the number of consecutive years a board member could serve effective July 1, 2018.

In spite of the fact that community association attorneys consistently advised that the law is NOT retroactive, management companies and individuals continued to insist that members were term limited if they had served consecutively for 8 years. In fact the debate got so heated at times – we often found ourselves on opposite sides of those that were misinterpreting the basic principles of law.

The misinterpretation was fueled by a Declaratory Statement from the Division of Condominiums requested by a condominium association. In spite of the fact that we advised "It is important to remember that declaratory statements deal only with a specific set of circumstances. The holding of the declaratory statement is not applicable to other condominiums or cooperatives" the debate continued.

In Florida, all laws are presumed to apply prospectively, unless they are remedial in nature, or designed to clarify law already in effect, and the legislature clearly expresses its intention that the law is to apply retroactively. This is the whole purpose of the effective date because it provides adequate notice to the public of when an act is required to be performed. In the case of the newly added language regarding director term limits, the legislature did not clearly express in the statute its intention for the new term limit to apply retroactively.

As a result, we took the position that the law, in most cases, is deemed prospective, and therefore the eight-year term limit is calculated for terms beginning after July 1, 2018. The legislature confirmed this by amending the provision in the 2021 legislative session to clarify that the 8-year term limit starts to run at the first election after July 1, 2018.

There are exceptions to the term limit restriction.

First, 718.112(2)(d)(2) provides that board members may serve more than 8 consecutive years on the board if unit owners representing two-thirds of the votes cast in the election approve a board member going over the 8-year term limit or there are not enough candidates as open seats.

Next, pursuant to case law it is well established that unless the governing documents contain specific language that allows the law to modify the provisions of the governing documents, changes such as term limits will not apply – ever. Language must be included that the bylaws are subject to Chapter 718, FL STAT as may be amended from time to time or the provision does not apply.

 

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(7-1-21)

QUESTION:

As a qualification to run for the condo board, may the Association place in the bylaws residency requirements on an individual, such as "must reside on property at least 6 months of the year?" May the bylaws require a minimum time of ownership to run for the board (1 year, 2 years)?

ANSWER:

The governing document have to be consistent with the law. All members are eligible to serve on the board and if the Bylaws so provide, there may be a provision allowing non-members to serve on the board. Arbitration decisions have constantly prevented any restrictions on a member serving on a board that requires residency or restricts service to those who have lived on the property for a specific period of time before running for the board. The board may not place requirements that remove a board member if they do not attend meetings. The law has a provision for removing a director by recall and that is the only way to remove a board member that is otherwise eligible to serve on the board.

QUESTION:

Our Board of Governors (BOG) of our Condo association has recently been hiding things from the membership/owners. There have been multiple meetings where the BOG posts the meeting notice with a limited agenda and excludes the residents on the grounds that the meeting is protected under the Florida statute allowing "Personnel Issues" to be discussed without residents present. I have challenged the BOG president and vice-president, but they continually assure me that "The Board will be in compliance with FL. STATUTE 718-112".

One such meeting was to end our relationship with our current law firm and contract a new law firm. Since the attorney is not an employee of the association, I was surprised to hear that the BOG chose to keep this meeting private and actually felt that this is exactly the type of meeting that should be open to residents. Additionally, the BOG is currently working to remove our current Property Manager (CAM). While I understand that some things require privacy, but I feel that our BOG is taking advantage of a loophole and using "personnel issues" as a way to exclude the residents from hearing the discussions. My question is about the recourse that owners have to prevent the BOG from hiding behind the exception. What can the residents do to keep the meetings open and inclusive and what legal recourse do we have when they do not.

ANSWER:

The board’s decision to hire legal counsel is not a personnel meeting – but if the board agrees unanimously, the decision can be made by written consent in lieu of a meeting pursuant to Chapter 617, Florida statutes. Hiring a management company is not a personnel meeting – but discussing the performance of an employee, such as a manager or a staff person is a personnel meeting. It is not reasonable to define decisions that are required to be made regarding engaging professionals as personnel meetings. The only reasonable reason to have a closed "personnel" meeting is if the discussion involves the performance of a specific employee.

 

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(6-17-21)

QUESTION:

We are a small community and a board member recently moved so we only have 2 board members when we are supposed to have 3. The new president has selected contractors that have not been vetted and they are charging a considerable amount over what the prior contractor charged. Although no one wants to think the worst of people – it is concerning that there may be some sort of a payment made by the contractor to the president to justify the over charges. It appears work is being done without permits or proper licenses. The one other board member cannot make a difference since the president has taken over. What can be done?

ANSWER:

If the board is required to have a specific number of board members – it should either appoint or elect members to fill any vacancies pursuant to the requirements in the bylaws.

The board member is likely going to incur personal liability if the activity described rises to the level of being a breach of fiduciary duty. The Business Judgment Rule in Florida provides that a director must discharge his or her duties in good faith, with ordinary care, and in a manner he or she believes is in the best interests of the corporation. F.S. §617.0830. Breaching one of these duties does not make a director liable for damages. A director cannot be liable for damages unless it is proven that the director’s breach of his or her duties (whether in a statement, vote, decision, or failure to act) consists of one of the following: 1) a knowing criminal violation; 2) a transaction involving an "improper personal benefit" 3) an improper distribution to shareholders; 4) conscious disregard for the best interest of the corporation; or 5) willful misconduct.

If the president is suspected of using unlicensed contractors or of allowing work to be done without the proper permits – this could be considered a breach of fiduciary duty for which the president may likely incur personal liability. Allowing such activity to go unchecked may be considered a "conscious disregard for the best interest of the corporation". The association is required to obtain competitive bids [2 or more] if the services exceed 5% of the annual budget including reserves. All contracts should be reviewed by the association’s attorney – boards who fail to have contracts reviewed may be putting the corporation in jeopardy if the contractor is not properly vetted or if the contract does not contain the proper language to protect the association in the event the work is not performed in a timely manner or to industry standards.

If the president is found to have received anything of value from the contractor this is even a more serious breach. An officer, director, or manager may not solicit, offer to accept, or accept any thing or service of value or kickback for which consideration has not been provided for his or her own benefit, from any person providing or proposing to provide goods or services to the association. Such activity may subject the board member to a civil penalty pursuant to s. 718.501(1)(d) and, if applicable, a criminal penalty if the failure to perform, his or her duties constitutes a violation of criminal law as provided in s. 617.0834; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The theft or embezzlement of funds of a condominium association is punishable as provided in s. 812.014,

A concerned owner has the option of making an official records request to see the contracts and the bids and /or to make an inquiry for which the board has a duty to respond. If after reviewing the official records and the response to the inquiry – and confirming that there may be suspicious activity – an owner has the option of making a complaint to the Division of Condominiums or contacting local government agencies such as contractor certification and code enforcement. If the contractor is found to have performed work without the proper license or permits – the board member authorizing such activity may be found to be in breach of his or her fiduciary duty. Furthermore – any board member that knowingly allows such activity to continue unchecked may also be found to be in breach of his or her fiduciary duty.

 

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(6-3-21)

QUESTION:

I am a new treasurer for our condo association board. As I prepare to start the budget process for next year, I looked at earlier budgets. These all have been perfectly balanced because they contain a "plug" called contingency. This is simply a calculated value that is the difference between operating expenses and revenue. The past treasurer insisted that the budget must balance exactly. I have not found that requirement, nor does it even make sense. My plan is to state any estimated surplus or deficit explicitly so the board and members can see clearly how revenues and expenses compare. I have also read that it is a bad idea to have a line item for contingency.

ANSWER:

A condominium can only spend assessments on items that are specifically allowed as per the Declaration. A budget is an estimate of expenditures for the coming year. The goal is that –after having a cushion for two to three months of expenses –the closer you are to zero in the operating account at the end of the fiscal year the more accurate the budget. It is impossible to attempt to budget to the penny — but it is responsible to plan for unexpected expenses. In the operating account it does not matter if you budgeted $1000 for landscape extras and $5000 for repairs and your actual spending was $2000 for landscape extras and $4000 for repairs. In the reserve account — it matters — and you cannot have a contingency line item in the reserves as the law requires the reserves to be specific. The Division of Condominiums has a great publication to educate boards on preparing Budgets and Reserves. It can be downloaded from the following link.

http://www.myfloridalicense.com/dbpr/lsc/documents/

BudgetsandReserveSchedules.pdf

QUESTION:

We recently replaced flooring in a first-floor unit – and the condominium has advised that we violated the Declaration by not installing carpet.

My understanding is that these flooring guidelines are issued due to noise nuisance. This particular unit is (1) on the first floor, and (2) a corner unit with 2 carpeted rooms separating the main living area from the next-door neighbor. Clearly there can be no noise issues that affect anyone.

My question is, can the Condo enforce this rule against a first-floor unit and force us to change the flooring back to carpet, even when it clearly has zero effect on anyone?

ANSWER:

First – always read the Declaration and Rules before alterations take place. Second – if the Declaration specifically limits the requirement for carpet to a second-floor unit – the board cannot modify this provision via a board rule. But if the Declaration was amended by a vote of the membership to require carpet in all units – the board can enforce the restriction. It is unfortunate that owners do not always receive a complete set of governing documents when purchasing a unit – but the governing documents are recorded in public record and the rules as well as the recorded documents are required to be provided by the association upon request – so it is wise to read the restrictions prior to purchasing and / or attempting renovations.

 

***

(5-20-21)

QUESTION:

Can my condominium (or co-operative) board require that I provide the association with a key to my unit?

ANSWER:

Yes, you must provide a key to the association, even though Chapters 718 and 719, Florida Statutes, do not specifically address the issue of providing keys to the association. 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 or as necessary to prevent damage to the common elements or to a unit.

While this may seem intrusive to a unit owner, who views this as granting too much authority to the association, there are practical reasons why there are numerous arbitration decisions that support the Associations’ right to enter a unit and the right to require a key – even if the Declaration does NOT contain a specific requirement for a unit owner to provide a key. Moreover, the arbitration decisions have consistently held that there is not a valid reason for an owner to refuse to provide the association with a key to a unit regardless of whether it is a concern for valuables located in the unit or even if there are guns in a unit.

In the event of an emergency, valuable time may be lost gaining access to a unit while trying to locate the owner, his representative, or a locksmith. The issues that come to mind involve both the safety and concerns of the occupant of the unit as well as his neighbors. For example – if a pipe burst and the association needed to enter the unit to mitigate the potential water damage, valuable time could be lost waiting for access. What if the occupant of the unit is in need of assistance due to a slip and fall or a medical condition?

If you live in a condo or a co-op that requests a key to your unit, we suggest you comply. If you have valuable items that you are concerned about protecting, it may be prudent to put the items into a safety deposit box or a locked closet within the unit.

 

***

(5-6-21)

QUESTION:

My four unit condominium has termites. The owners are about to have the building tented but we have an owner that refuses to vacate. The association has notified us that they cannot proceed until we get all four of the unit owners to cooperate. What are our rights and responsibilities?

ANSWER:

You cannot tent the building until all owners have vacated since the process and the chemicals are hazardous to humans and pets. There are arbitration decisions that support the association in requiring unit owners to vacate to permit the tenting and fumigation of the building. In one such case, the arbitrator ordered the unit owner to cooperate with tenting because the maintenance of the common elements is the responsibility of the association and the board’s decision on the method (tenting) of carrying out its responsibility is presumed correct under the business judgment rule. Unfortunately, the association may have to proceed with legal action in order to force the owner to vacate, unless it is able to convince the owner that he must cooperate.

QUESTION:

I 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 constantly. 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?

ANSWER:

You 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.

 

***

(4-22-21)

QUESTION:

I reside in a condominium complex. One of the owners is doing remodeling which has been ongoing for weeks, with constant noise for breaking up the flooring, bathrooms etc. (they are doing a total remodel) nothing was posted about the construction nor any notice given by HOA. Several of the residents work from home now and this is causing major issues. Are there any requirements that an HOA or owner must provide other residents with some notice of impending construction and length when it involves heavy and frequent disruption to others? Noises are so loud that all floors hear it (7 floors) I am 4 floors down and unable to hear communication on phone, computer or TV without being overly loud.

ANSWER:

Communal living is not for everyone. Unit owners will be inconvenienced by construction in another unit because of the shared walls and the fact that sound travels. A condominium association has the authority to approve construction, access to the common elements, dates when construction can or cannot occur and the time of day that a unit owner can have work performed. If the Unit owner is proceeding with the construction pursuant to the permission that was granted by the association – it is not likely to be a violation.

QUESTION:

Can a Condo Board President attend a meeting with a non- board member, a unit owner, to discuss Condo Declaration Docs?

ANSWER:

There is nothing wrong with a board member attending a meeting with a unit owner. It is remarkable that other unit owners monitor the actions of Board members as if they have given up the right to talk to others within the community. Serving on the board carries with it responsibilities to act in the best interest of the corporation. This does not include having your every moment examined. It is our experience that the majority of board members are devoting time and energy to the community and most have the best interests of the corporation as a common goal.

 

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(4-8-21)

QUESTION:

In 2008 the Florida State Legislature enacted a LAW which REQUIRED condo owners to have homeowner’s insurance. It was put into effect in 2009. In 2010 the LAW was RESCINDED as being unconstitutional and a violation of basic rights and liberties in that it not only REQUIRED coverage, disallowing a fundamental right to choose, but that it gave a FORCED PLACING authority to condominium boards. ( How may a board spend condo fees to buy insurance for an individual owner? )

Another lesser agency of the same state government then proposed that a board of directors would be allowed an OPTION (choice) to REQUIRE the same thing that the rescinding of the LAW OUTLAWED. The condo in which I live has amended its Declarations to include the ability to REQUIRE insurance. How can this be authorized?

Any clarification would be appreciated. Thank you

 

ANSWER:

An association’s coverage is usually limited to building exteriors and common areas such as common areas, building envelopes, courtyards and parking lots. An individual condo owner typically must insure against injuries and damages occurring inside the four walls of his unit. The problem with the law was not the requirement that the owner have insurance – it was the suggestion that the Association could purchase insurance on behalf of a Unit Owner without the Unit Owner’s participation in the process. The failure of the law was due to the legislatures assumption that there was an ability for an entity to purchase insurance on property it did not own. There are provisions within the insurance regulations prohibiting the purchase of insurance on property for which you do not have an insurable interest. A mortgage company or a bank can force place insurance to protect its insurable interest in the property as the collateral for the loan IS the property. While it would seem that a Community Association has an "insurable interest" if a unit is destroyed but not repaired since it can impact the building and the other owners – the insurance regulations do not permit the purchase of insurance on property that is not owned by the entity. The requirement to purchase insurance on a Unit by the owner, if contained in the Declaration of Condominium is, enforceable.

QUESTION:

We have a Condo in Florida. The central A/C unit broke down in our unit. And we have to replace it with a new one. The Association requested a payment of $300 to replace the A/C and an elevator deposit. Is this permitted under the law.

ANSWER:

If the charge is for a professional to review the plans for the replacement of the A/C authorized within the governing documents, the Association may be able to collect such a fee. Without a review of the governing documents we cannot provide an answer – nor do we review governing documents on the behalf of owners or for this column. Regarding a refundable deposit for the use of the elevator or the common area – the association has no relationship with your contractor, nor should it be required to pursue your contractor making repairs to your unit for damages – that is your obligation as the party contracting for the repair.

 

***

(3-25-21)

QUESTION:

I live in a 2nd floor condo and I'm renovating my unit and tiling the entire unit. My contractor is putting down the appropriate soundproof membrane for the job and we should be finished by May 1st of 2021. The board is currently updating the condo declaration to now include a new requirement of requiring carpet in the bedrooms and living room which will be voted on after my unit renovations have been completed. Can the association force me to remove the tiles in the bedrooms and living room if the new declaration is approved or would my work be typically grandfathered? Thank you so much for taking my question.

ANSWER:

It depends – it appears that the Declaration does not prohibit the installation of tile at this time. It is still important to be cognizant of creating noise for the occupants below you even if the tile is allowed – so if your tile floor causes a disturbance the owner that is disturbed could still bring an action if the tile is causing a disturbance. Provided you have the approval of the Board to proceed with the installation of the tile and you have complied with all applicable permits, your tile floor should be grandfathered in the event that the amendments to the Declaration passes.

QUESTION:

I live in Broward County, Florida. The management company for my HOA has been depositing my HOA payments into an account that is not associated with my association. This has occurred on four occasions thus far. To add insult to injury they send letters accusing me of not paying and threatening legal action with an attorney for collection. Each time I have demonstrated that they are incorrectly depositing my payments to a different account in another condominium. Is there anything you can recommend that I can do to get them to correct the issue and discontinue the harassment with their delinquency letters?

ANSWER:

If you were provided with a coupon make sure that you send that with your payment. If the situation continues send a letter advising the board of the situation.

QUESTION:

Does the associations bank have to be in the state of the association or can the association (COA) use a bank that is out of state. Then there are the bank records if the bank is out of the state, how so are the records kept as to in state or out of state?

What law covers that?

ANSWER:

The association’s governing documents can require that the association funds are in a bank located in the state of Florida – but there is nothing in the law to require the associations funds are invested in a bank located within the state.

 

***

(3-11-21)

QUESTION:

I have been reading your Condo News questions and answers and find it very informative. I have a question. Our condo does not have any on-site office staff. At a closed HR meeting with the management company, can a Board vote to hire a part-time office person, or should this be done at a regular Board meeting? I understand that HR matters can be discussed at a closed meeting but not sure if a vote can be taken.

ANSWER:

Discussion regarding pay, benefits and work experience of the individual being considered for a position is a personnel matter that can be conducted outside of a board meeting. Hiring of staff is not a personnel matter and the board should approve this at a board meeting.

QUESTION:

At our Annual Meeting, the members are requested to vote on several questions that the Board of Directors has elected to place before the community for a vote. They include a recommendation as to how the members should vote and give a brief explanation of why it would be beneficial to the community.

My Question is: Does Florida Law provide any rights to members who are in opposition to the Question, to be able to include their explanation on the ballot as to why they should vote against it? My experience is that once the ballot is mailed with the Board’s recommendation, it is too late for any opposition. Most members do not actively participate in the governing of the community and do not attend board meetings. If the Board says "Vote Yes" they just vote Yes. Many times, the questions are a surprise to the members, the first time they are aware of them may be when the Second Notice is received.

ANSWER:

The community should have trust in the direction the board is taking it and if they don’t – others can and should run for the board. Any unit owner may voice his or her opinion regarding things that are being considered by the association. There is nothing in Florida law to require the association to add anything to a ballot to express the opinion of those that are opposed.

 

***

(2-25-21)

QUESTION:

Hi there,

We are trying to get our "tennis courts" to become "hybrid courts", by adding additional lines in another color, so that both tennis and pickleball could be played. We have gotten much pushback. Can our bylaws, or something similar, be changed so that a 75 % vote by all of the owners is not needed...that is, could that be changed to a 75% or a 2/3 vote by "only those voting" be enough to get something passed? 75% of all owners is very difficult to achieve on any matter.

Thank you!

ANSWER:

The Declaration can be amended to change the vote required for a material alteration -provided a sufficient number of residents vote for the amendment.

QUESTION:

We are owners in a multi-condo complex governed by a Master Association. Association rules state that kitchen cabinet and countertops require Association approval to upgrade our kitchen. Contrary to the Rule our Condo Declaration addresses owner alterations stating approval is not required if cabinetry. fixtures, etc., maintains essentially the same footprint as the old. Building permits are not required. I am of the opinion that the Declaration prevails over the Rule. Right or wrong?

ANSWER:

Right! – In general - a rule enacted by the Board cannot modify a provision that has greater authority such as 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 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 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.

 

***

(2-11-21)

QUESTION:

The parties agreed to defer voting member rights to me in the absence of the owners. There is no financial value for this agreement. Signed and notarized by my daughter and son-in-law. Some board went to attorney. Attorney came back with statement I needed power of attorney over my daughter. Bylaws say no such thing. Am I right to go to meetings and vote without power of attorney?

ANSWER:

It appears you are attempting to attend meetings on behalf of the owner and to cast votes in the owner’s absence. We agree that a power of attorney is required to permit you to attend meetings – but the vote of an owner may not be transferred to someone that is not on the deed.

QUESTION:

Hello. I have spent the weekend reading the questions and answers from your column. It was very informative, as I have lived in a condo for 14 years, for six months during the winter, and did not know some of the information you provided. Thank you for doing this. During these past 14 years, our Board of Directors meetings have strictly been attended by owners only. Now it seems that a renter has a proxy from their landlord that they claim allows them to attend our meetings. I have been trying to research it, but I have found conflicting answers. Our declarations only specify meetings for owners, but they were written in 1973. These renters are friends of past and present board members. The past board member claims that when she took a certification course to be on the board, it is in the Florida statutes that proxies can be used to attend a board meeting. Can you please clarify? Thank you for your time.

ANSWER:

Similar issue as the previous question. A condominium unit owner may use a proxy form to vote on an issue, other than in an election, if he or she cannot attend the meeting at which the issue will be decided. The proxy form is given to another owner (the proxy holder) who is expected to attend the meeting in the absent owner’s place and act on the owner’s behalf. Unlike a proxy that is given to another owner, a power of attorney is required for a non-owner to attend a meeting on behalf of an owner. It is usually acceptable for someone to attend on behalf of an owner if that have a valid power of attorney. However, acts that are required by law or public policy to be done by the owner personally cannot be delegated to via a power of attorney. The right to cast a vote in an election or otherwise is reserved to the owner or another owner that acts a proxy. A non-owner cannot be a proxy holder and a non-owner cannot vote on behalf of an owner.

QUESTION:

Thank you for all what you for the condo communities in FL. You guys are amazing. for the past two decades, our COA never rejected a ballot signed by a husband or wife for the general election. This new board rejected about 40 ballots this term under the missing "voting certificate" pre-text. We argued that our bylaws are silent about the voting certificate in terms of the general election, Do we have a chance to overturn this?

ANSWER:

If your association has required voting certificates - it can reject ballots if there is not a valid voting certificate on file. If your association never required voting certificates in the past, it is likely that the rejection of votes for not have a voting certificate on file would be overturned if you filed an election dispute with the Division of Condominiums. Please note – many associations send voting certificates out with every election. Voting certificates are ony required if there is not a valid certificate on file. To send one out with every election is confusing and unnecessary. In fact – the voting certificate often ends up in the ballot envelope – so the intent is not obvious s until after the ballot envelope has been separated from the outer envelope. The voting certificate should be executed at the time the unit is transferred and the association should have a book, organized by address, that contains the required voting certificates. If the owners wish to amend the certificate – the owners should request a new form.

***

(1-28-21)

QUESTION:

I reside in a gated condo community in Monroe County, FL. Most of the rentals taking place are between 1 and 7 days. The condo association wants to be able to evict short term renters when they habitually ignore the rules and regulations in place. Is there any way the homeowner can give permission to the association to do this without putting it in the Declaration? Will a simple statement from homeowners give the association this ability? Many homeowners are absent landlords having a local property manager. The other alternative might be a limited Power of Attorney just for that purpose. Would greatly appreciate your advice of this situation. 

ANSWER:

Landlord tenant laws are specific and unless the Association has a Limited Power of Attorney from the Owner authorizing it to evict a tenant for a violation of the governing documents, a judge is not likely to proceed with an eviction filed by the Association, even with such a provision in the Declaration. Therefore, if a Unit owner volunteers to give the Association a Limited Power of Attorney to facilitate an eviction the Association can proceed with the eviction – but there must be an agreement as to who is responsible for the legal fees incurred. It is not likely the Association is in a position to finance evictions not nor is it likely that such an expenditure of funds would be authorized by the governing documents.

QUESTION:

Our property in Aventura, FL has 430 units and majority of the owners rent out their units. Due to COVID-19, with less workers, the US Postal Service was extremely slow. We are scheduled for a election meeting for a new board this week. The ballot package was postmarked on time but, from what I know, a lot of the owners in the states (Not to mention the owners who live out of the country who still haven’t received their first ballot package.) did not receive their ballot package within a timely manner. The US owners received their ballot package a month after postmarked date. To make matters worse, our property manager had to resend another ballot package due to no lines on the outer envelopes. If it takes a month to receive a ballot package, it might take the same amount of time for management to retrieve the ballot envelopes. We, owners, requested the current board to postpone the election. We haven’t received a response from the board - we have received the "cone of silence". If the election continues, may owners have any recourse? If the ballot envelopes (postmarked before the meeting) arrive after the meeting closes, will they still be counted? Our current President and the other directors want to stay on the board and obviously don’t want to postpone the election. I’m glad that I found you and any insight would be most appreciated. Thank you.

ANSWER:

The Annual Meeting and Election must occur on a specific date if one is provided in the Bylaws. The law does not allow the Association to cancel or reschedule the Annual meeting and Election if the Association has not done anything to render the Election null and void. There are three deficiencies that would render an election null and void: 1) Failure to mail or deliver the first notice of the date of the election not less than 60 days before the scheduled election [Rule 61B.23.0021 (4)]; 2) the associations failure to timely mail or deliver to voters a copy of timely delivered information sheets of eligible candidates [Rule 61B-23.0021 (7)] and 3) the use of a ballot that fails to indicate the name of an eligible person who desires to be a candidate and who gave written notice not less than 40 days before the election or who was nominated pursuant to §718.112(2)(d) 3, Florida Statutes [Rule 61B-23.0021(9)]. The Association cannot mail ballots until 34 days before the election so that it can include all eligible candidates information sheets since the deadline to submit an information sheet is 35 days before the election. If the Association mailed the ballots on day 34 – there is nothing to dispute as that was the earliest day allowed under the law. If the Association followed the provisions in its Bylaws for mailing the second notice they have acted correctly and the Election most likely would not be found to be in question.

 

***

(1-14-21)

QUESTION:

Our local (villa) board approved a modification request to rebuild our front and back lanais. The request included a slight change to the lanai structure to allow for full-view screening. There is to be no change to the footprint of the original building. This modification request was subsequently approved by the Master Association ARC.

Based on the approvals, received 5 days apart, we contracted with a screening company and made a sizeable deposit. The screening company is working on obtaining necessary county permits.

Now, as a result of a complaint by a neighbor stating that he does not like looking at a similar structure at the opposite end of our complex and does not want to look at one closer to him, the villa board has sent us notice they are rescinding the approval. Apparently, ARC will follow their lead and will rescind as well. This villa board decision took place via email discussion over the past 2 days. We have been advised that on Monday a villa board member will go to the property management office and "pull the approval."

Once both entities have approved a modification request and notified the homeowner in writing of such approval, can the approval be rescinded?

In point of fact, there are 2 other similar structures within the villa area, both of which received villa board and ARC approval.

Thanks for any answers you may be able to give us to peacefully adjudicate this issue.

ANSWER:

Unless the approval granted was for something that the governing documents prohibited – your approval should stand. A suggestion that the board inquire of the Association attorney as the legality of rescinding a previously approved request may resolve the situation. Otherwise – you may need to consult an attorney that represents unit owners.

QUESTION:

I am a snowbird in a mobile home "transient" park where we own the property. I’m usually there about 5 months as are many residents.

There are 543 units and about 120 live there full time.

They are raising our HOA for the third year in a row and will have a special assessment for added water, sewage and electricity.

Shouldn’t year around residents pay more in HOA fees because they use these utilities more than snowbirds?

ANSWER:

The governing documents outline the Association’s responsibility and authority for collecting assessments as well as the proportionate share of each owner. If the governing documents do not provide a method for assessing based on occupancy – then all owners share in the fees.

 

***

(12-31-20)

QUESTION:

Can my condominium board require that I provide the association with a key to my unit?

ANSWER:

Chapters 718 and 719, Florida Statutes, do not specifically address the issue of providing keys to the association. 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 or as necessary to prevent damage to the common elements or to a unit. Even if your declaration does not specifically requires you to provide a key – you are required to provide access.

While this may seem intrusive to a unit owner, who views this as granting too much authority to the association, there are practical reasons why there are numerous arbitration decisions that support the Associations’ right to enter a unit. Moreover, the arbitration decisions have consistently held that there is not a valid reason for an owner to refuse to provide the association with a key to a unit regardless of whether it is a concern for valuables located in the unit or even if there are guns in a unit.

In the event of an emergency, valuable time may be lost gaining access to a unit while trying to locate the owner, his representative, or a locksmith. The issues that come to mind involve both the safety and concerns of the occupant of the unit as well as his neighbors. For example – if a pipe burst and the association needed to enter the unit to mitigate the potential water damage, valuable time could be lost waiting for access. What if the occupant of the unit is in need of assistance due to a slip and fall or a medical condition?

In the event that you live in a condo or a co-op that requests a key to your unit, we would suggest you comply. If you have valuable items that you are concerned about protecting, it may be prudent to put the items into a safety deposit box or a locked closet within the unit.

QUESTION:

Recently, at a board meeting, our board voted to contribute $200 to the Cub Scouts(a personal friend of the president of our board has a son that is a member of the troop they contributed to)out of our money that we pay for our association dues. Should the homeowners have the right to vote on an issue such as this? Its not the $200 dollars it is the principle. We did a petition asking them to put the money back they said what they did was perfectly legal. If so does that mean next time its $2500 to the charity of the president’s choice?

ANSWER:

Unless the governing documents specifically state that charitable contributions are a common expense, the Board used Association funds for other than common expenses in violation of section 718.115(1), Florida Statutes. Association 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 part as follows: 718.115 Common expenses and common surplus. (1)(a)Common 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.

 

***

(12-17-20)

QUESTION:

Many of the owners in my Condominium Association will not vote on any Amendment because a list of owner names with how they vote can be obtained from the Board. The means they are getting this list is by requiring owners to sign a proxy even if they are present at the meeting on the amendment. The Board says the only private vote is for Directors at the Annual Meeting. They say this vote is included in the official records of the association and are open to inspection by any association member or the authorized representative of such member.

Most of the owner’s state there is nothing in the documents that gives permission to divulged to others how they vote. The owners feel that the total number of votes in the affirmative and in the negative is all that would be required. They would approve a list of owner names that voted but not how they voted. I cannot find anything in Florida Statute 718 that addresses this issue, so I do not know which side is correct. Are there any written documents that will clarify this matter? Thank you in advance for your help in this matter.

Respectfully submitted.

ANSWER:

The results of the votes on the amendments are part of the official records and are available for review by a unit owner that makes such a request. They are a written record and as such must be maintained for seven (7) years.

QUESTION:

We live in a Florida Condominium located in Miami-Dade County.

As part of our maintenance fees, we get bulk cable service to each unit.   Since 2009 the service provider has been Comcast (Xfinity).  The contract was coming due and the Board of Directors decided to switch the bulk services to Atlantic Broad Band (ABB) through a duly noticed meeting.

The Board did not hire a consultant with expertise in bulk rate cable TV and telecommunications.

After the Board voted to enter into a contract with ABB, it discovered Xfinity owned the cables and lines.  Consequently, ABB must run its own wiring to the community.

Management company sent emails asking residents to do a month-to-month agreement with Xfinity until ABB is up and running.  At first Management offered a fair monthly amount that would be a credit to each ledger account upon showing statement.  Management has since lowered the amount that would be credited to each owner (1/4 of the original amount).

We live on a fixed Social Security income.  Do we as owners have any rights to demand actual cost for same services be paid by the Association?

Please let me know if you have any questions or require further details.

ANSWER:

The Board has the authority to enter into a cable contract – without the vote of the owners – unless the governing documents require otherwise. The association does not have any means of collecting revenue other than assessing owners. If your bulk cable contract is delayed, the Association cannot provide you with more money than it collects. Therefore – provided the association is crediting you with approximately what it is collecting for your former contract - there is nothing more you can expect. A competent professional may have anticipated the issue with the ownership of the wiring – and it may have been able to negotiate a credit from the new cable provider if it was delayed in installing the required infrastructure. Ownership of the infrastructure should not be overlooked when changing providers. We negotiate cable contracts on behalf of our clients and we are aware of the pitfalls when changing providers – a board of directors has an obligation to consult with professionals when entering into contracts and selecting a new cable provider would be a great example of when a board should seek assistance.

 

***

(12-3-20)

QUESTION:

Hi, I wanted to know if a Condo Assn could adopt a "dress code" for our building located in PBC. We have an owner who will not wear a bra, walks around in her pajamas, and uses poor language at both neighbors and her husband. She is bi-polar. Love your Condo News and thank you for answering my question.

ANSWER:

More than likely if the resident suffers from a mental illness, she will not follow a rule anyway. Perhaps someone could appeal to a family member to intervene – it is an unfortunate situation. Many times the resident has no family or has alienated the family due to non-compliance with medication or the family’s inability to cope with the challenges. We have no easy solution when approached with situations like this.

QUESTION:

Thank you for the wealth of knowledge you share!

My mother is an 85-year-old woman who suffered a great and shocking loss nearly three years ago. As a result of her pain, she has begun to show signs of what we think is perhaps early dementia.

A couple of months ago, I received a call from the head guard at her Doral, FL condominium letting me know that due to her age and forgetfulness, we (my brothers and I) needed to remove her or she would be removed by the authorities and we would be fined for abandonment and neglect. They also advised that we cannot allow her to drive, citing that they are displeased with the way she parks.

My mother owns her condominium outright, she keeps a low profile and has always adhered to the rules, keeping her financial obligations current. She bought her condominium after my father’s death fourteen years ago and now she faces being forcibly removed as they have already done with a number of the elderly in the building. For some reason it is the guard and not the President of the Board of Directors or the Management Association who has communicated this to us, although the President of the Board did make a lame attempt to call and failed to be clear in her conversation. We have asked for a letter explaining their position but they refuse to give it, instead asking that we provide them with communication from my mother’s personal physician explaining her health. My mother wishes to stay in her own home rather than to move in with one of her children or into a retirement community.

Is this legal? Can they forcibly remove an owner from his or her property because they claim she represents a danger to all residents with her forgetfulness?

Thanks to advice.

ANSWER:

If you mother is suffering from dementia, she may be a danger to herself or others. It would be prudent for a family member to intervene and to assess the situation. A visit with her and her doctor is most likely in order. Hopefully, she will agree to appointing one of you to be her health care surrogate so that if it is required you can make medical decisions on her behalf. She should also consider appointing a power of attorney to make financial decisions as well. If your mom has not put her affairs in order it would be prudent to see that she takes the time to do that as well. We see this far too often in the communities that we represent. Often there are not any family members to contact and the elderly person has to rely on social services. Your mother needs you to intervene on her behalf and if the situation warrants such – you may have to make the hard decision for her if she cannot subsist on her own anymore.

 

***

(11-19-20)

QUESTION:

I have a question about owner access to minutes from a closed meeting. The owner has mentioned litigation but has yet to act on this.  But our COA board met in a closed session with the attorney present to discuss a request for reimbursement of expenditures incurred by an owner for a situation where the CAM kept insisting that a leak in the unit below was being caused by her unit. Several plumbers later, it was finally determined that the leak was not being caused as a result of a plumbing issue in her unit and she is now requesting to be reimbursed for the subsequent plumber visits.  A majority of the board decided not to reimburse (not a unanimous decision). The owner has requested a copy of the closed meeting minutes. Is the board obligated to send her a copy?

ANSWER:

Generally, all meetings of the board should be open to the members, but the exception is to allow closed sessions to address confidential or legal matters. Only generalized minutes should be kept of closed sessions, including the result of any motions made with a list of how each board member voted. The minutes are to be kept separate from the official records as the whole point of a closed meeting is so that the board can discuss litigation strategy with the attorney. After the matter that is the subject of the closed meeting is resolved, the minutes can be available to the membership.

QUESTION:

I am one three Board members of a 24-unit condo in Florida.  The building is currently being renovated.  Two units, one in which I own, had AC condenser platforms removed because they were failing.  One Board member made the decision to contact the Associations attorney, without consulting  with the other two members, because she felt I had a conflict of interest if I participated in the decision to replace the platforms or relocate the AC condensers.  There have been many constructions projects during this renovation that could have been considered a conflict of interest for all three members and no one had ever been told to recuse themselves because of conflict of interest.  A legal opinion was rendered but the one Board Member will not share the opinion with me.  We have not designated any individual Board Member to be the Attorneys contact person and every other decision has always had all three members involved. Is this a conflict of interest for me as a Board Member?  Do I have a right to see the opinion?

ANSWER:

The issue regarding your ac platform should be addressed in the Declaration as to the maintenance or replacement responsibility. Perhaps you can contact the attorney and inquire as to why the legal opinion is not being shared with the entire board. Unless you have threatened litigation there does not appear to be a reason that you are not being advised of the attorney’s opinion.

 

***

(11-5-20)

QUESTION:

I am one of three Board members of a 24-unit condo in Florida. The building is currently being renovated. Two units, one in which I own, had AC condenser platforms removed because they were failing. One Board member made the decision to contact the Associations attorney, without consulting with the other two members, because she felt I had a conflict of interest if I participated in the decision to replace the platforms or relocate the AC condensers. There has been many constructions projects during this renovation that could have been considered a conflict of interest for all three members and no one had ever been told to recuse themselves because of conflict of interest. A legal opinion was rendered but the one Board Member will not share the opinion with me. We have not designated any individual Board Member to be the Attorneys contact person and every other decision has always had all three members involved. Is this a conflict of interest for me as a Board Member? Do I have a right to see the opinion?

ANSWER:

If you were involved in pending or active litigation against the association, it would be reasonable to withhold attorney work product and / or legal opinions. In regard to your dilemma you have the right as an owner to make an inquiry and request a response per the law. In an abundance of caution, you should send the inquiry to the Association via certified mail and ask that you receive a substantive response. The provision of Section 718.112, Florida Statutes follows:

When a unit owner of a residential condominium files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days after receipt of the inquiry. The board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the board requests advice from the division, the board shall, within 10 days after its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. The failure to provide a substantive response to the inquiry as provided herein precludes the board from recovering attorney fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry.

QUESTION:

Is a Condominium operated website considered a Common Element? We are renters of a unit in our Gated Community. We are being told that the website for the COA is an owner "necessity" and we are denied access to this site. We were told that we can only access through our owners account. We were mandated to sign an affidavit of agreement to the Rules and Regulations as part of our approval upon leasing our condo/unit. The R&R’s permit the tenant all rights to the Common Elements. We contend that the website is a Common Element so we should be able to have access.

ANSWER:

Not only is the website not a common element – the association is not obligated to respond to your inquires. You are entitled to use the amenities in place of the owner – but you have no right to access information that is on a protected website. Furthermore, an owner has an obligation to protect his or her assigned password and an owner does not have the authority to share such access with others. It appears that the owner has responded to your request appropriately by not sharing access, as has the association.

 

***

(10-22-20)

QUESTION:

We have 131 units in our Condo Association and every unit has two assigned parking spots according to the Condo Docs. Over the years, many families have purchased additional cars for children and now almost every guest parking is occupied with their cars. How can the Board act in order to solve this situation? Your answer would be really appreciated.

ANSWER:

If the board has the authority to promulgate rules regarding parking (granted it in the governing documents) they could vote to enact rules regarding the use of the guest spots – such as not allowing overnight parking. If the governing documents do not give the board the authority to enact such rules, an amendment to the documents would be required to permit the board to enact such rules and it would have to be voted on by a percentage of the members in order to pass.

QUESTION:

Thank you for providing this outlet for questions. Does Florida Condo Law require someone must be a full-time occupant of their condo in order to run for the board? The condo bylaws do not indicate this is necessary, but the current board is citing this specifically.

ANSWER:

Quite the opposite. Chapter 718.112, states "any Unit Owner desiring to be a candidate for board membership must comply with sub-paragraph 4-a and must be eligible to be a candidate to serve on the board of directors as the time of the deadline for submitting a notice of intent to run. . ." There is nothing in the law requiring full time occupancy of a unit in order to be eligible to serve on the board.

 

***

Let me start this column with an open message to all Boards – stop signing contracts without the benefit of having your legal counsel review the contract. You are subjecting yourself to personal liability and even if you are an attorney – you are likely not the association’s attorney. The board is not acting responsibly or in the best interest of the corporation if it is signing vendor contracts without the benefit of a legal review. We have often been asked - after a vendor fails to perform – to assist the association in seeking a remedy. More often than not – the association is not protected by the vendor contract and there is nothing that can be done to resolve a breach or a failure to perform or the remedy involves litigation which is far more expensive than merely asking your attorney to review the contract.

***

(10-8-20)

 

QUESTION:

I have done as much research as possible and believe this "rule" to be illegal.

Briefly, it is a set of condo buildings with only stairwells at each end and long exterior, common element hallways. The board enacted a rule that owners must use the stairs nearest their unit.

So, a person’s assigned parking space may be at the East end of the building, but their unit may be roughly in the middle, but 1 am closer to the West stairwell. This means a resident would need to walk outside the length of the building in the rain, only to then walk up and walk about halfway back rather than use the closest stairwell. We are all equal percent owners, and the by laws specifically assign owners a non-exclusive easement over ALL common elements for ingress and egress. This takes away my rights and at the very minimum, would have to be done via amendment- and even then I’m not sure it is either legal nor wise.

ANSWER:

In order for a rule to be enforceable it must pass two hurdles. The first is that the board must have the authority to promulgate rules and the rules cannot modify the governing documents which are superior to the rules. It is unlikely that restrictions regarding the use of a particular staircase is contained in the Articles, Bylaws, or the Declaration therefore it must be determined if the rule is reasonable. If the rules and regulations are uniform in their application and enforcement and are reasonably related to promoting the health, safety and welfare of the owners- then it is likely to be determined to be enforceable. Without more facts – it is difficult to determine if such a rule is reasonable. It may be prudent for the board to ask its attorney for legal advice regarding the rule. Every day lawyers find out about decisions made by boards without the benefit of legal advice – which in turn may expose the board members to personal liability. Board members have a duty to act in the best interest of the corporation and to proceed to promulgate rules that are not reviewed by counsel is reckless and ill advised. As a unit owner you have the right to request that the board respond to your inquiry as to what makes such a rule reasonable and to insist that the board seek legal advice before enacting such a rule.

QUESTION:

Many of the owners in my Condominium Association will not vote on any Amendment because a list of owner names with how they vote can be obtained from the Board. The means they are getting this list is by requiring owners to sign a proxy even if they are present at the meeting on the amendment. The Board says the only private vote is for Directors at the Annual Meeting. They say this vote is included in the official records of the association and are open to inspection by any association member or the authorized representative of such member. Most of the owners state there is nothing in the documents that gives permission to divulged to others how they vote. The owners feel that the total number of votes in the affirmative or in the negative is all that would be required. They would approve a list of owner names that voted but not how they voted. I cannot find anything in Florida Statute 718 that addresses this issue so I don’t know which side is correct. Is there any written documents that will clarify this matter? Thank you in advance for your help in this matter

ANSWER:

Whenever I receive such an inquiry — I tend to say to myself — why would anyone care if anyone knew his or her position on amendments to the governing documents? It is your right as an owner to vote on amendments to the documents and it is your right to vote the way that you feel is best for you. In regard to your question – every document that is part of the official records of the association is open to inspection – and not to say that it never happens — I have never had any homeowner in recent memory that has ever requested to review ballots. The ballots are part of the official records and they are open to inspection by other residents. The issue of importance is that your board – hopefully with the benefit of legal counsel – has taken on the task of amending your governing documents to make them current with the law or to pass amendments to allow the governing documents to resolve an issue of concern.

 

***

(9-24-20)

QUESTION:

Can a board member collect mileage payments for the use of her car when used for association business?

ANSWER:

A board member is entitled to the reimbursement of reasonable expenses that are incurred in the performance of their duties. Before a reimbursement is made, the board should have a written policy as to what will be reimbursed. In addition, a specific accounting of expenses should be required before any reimbursement is made. Whether a board member is entitled to mileage reimbursement depends. For example, if there is a meeting that the board member has to attend on behalf of the association that could be a reasonable item to request mileage reimbursement. If the board does not have a written policy to allow for this, the board member should get board approval before attending the meeting if they are expecting reimbursement so that there is not any confusion as to what the board member should expect.

QUESTION:

Under 718.303, which governs Condominium Associations or under 720.305, which governs Homeowners Associations, does the board have right to cut off cable tv to an owner who is more than 90 days in arrears with his assessments?

ANSWER:

Good question. The first place the association needs to look for this answer is the bulk cable agreement. The contract between the association and the provider must have a provision that requires the provider to disconnect unit owners upon notification by the association that an owner is delinquent in payments to the association. Absent such a provision in the contract, the provider is not likely to disconnect the service. If the contract has such a provision, the provider will cooperate and the service can be disconnected. This question is often asked because the statutes that govern state that a utility cannot be disconnected. Cable tv is not a utility and unlike water, electric and gas for example, there are multiple providers available that can provide television programming on a retail basis to an individual. There is a caveat – the provider may not disconnect telephone service and if the telephone service is provided through the Internet connection – the provider is obligated to allow enough bandwidth for the telephone to enable the owner to call for emergency services.

 

***

(9-9-20)

QUESTION:

Thanks for your informative site- I’ve learned a lot.

My question concerns our complex which has a "no rentals" provision (other than the Developer) in the Declaration of Condominium originally drawn up in 2003. The developer is long gone, and this "no rentals" clause has never been amended. However, many units have been rented over the years with no enforcement action ever taken by the Board. Recently there has been discussion of enforcing the prohibition, but an owner mentioned an unspecified provision in Florida law (or court ruling) that should an association ignore violations of actions specifically prohibited in the Declaration for longer than 5 years, that prohibition is considered abandoned and may not be enforced unless legally re-implemented via a new Amendment to the Declaration of Condominium. Can you comment?

ANSWER:

If an association fails to enforce its governing documents it may lose the ability to enforce the restrictions contained therein. There is a method for re-establishing the provision that it failed to enforce for more than five years by sending out notification to the unit owners that it intends to enforce a provision going forward. The letter is referred to as "clean the slate" and it is based on case law. Although going forward the association will be able to enforce the provision as to owners that are not in violation – any owner that has already violated the provision will be "grandfathered" in and allowed to continue the violation. Once the owner sells his or her unit the new owner will be subject to the provision. In your example – any unit owner that has rented his or her unit will be allowed to continue doing so – but it is up to the owner to provide the association with proof that the violation has occurred. Another example would be an association that failed to enforce a no pet rule – any owner that has a pet would be required to supply the association with proof of the pet. The owner would not be able to have a new pet reside in the unit – but the existing pet would be permitted to stay.

QUESTION:

My condo association is considering purchasing and requiring installation of a device to monitor water flow into each of the 106 units in an effort to prevent future leaks. The device will monitor flow and cause a shut off valve to close when flow exceeds parameters. The association plans to require owners to allow access and installation of the device in their unit, as the device needs Wi-Fi to operate, owners will also be required to allow the device access to their Wi-Fi network and provide their Wi-Fi password. The device will use my Wi-Fi to access a cloud-based system that will send "messages" to the management in the event it detects an anomaly, it is likely the system will also transmit/receive data from the manufacturer.

ANSWER:

Unless the board is granted the authority through your governing documents to require such a devise – the board does not have the authority to require that you install a devise to monitor the water flow. We would agree that such a devise would save the association and the owner future issues with water leaks and an absentee owner should consider allowing such a devise to be installed. We would also advise that you NEVER give your Wi-Fi password to anyone nor is it required if you wanted to allow the devise to access your Wi-Fi so it can communicate in the event there is a leak. There would not be any reason to give the association access to your passwords even if the devise were to be connected to your Wi-Fi as you should be able to connect the devise without any need for the association to be involved.

 

***

(8-26-20)

QUESTION:

I serve on our Condo HOA as Vice President. We were told that we could email updates on the community and suggestions for our upcoming board meeting topics on condition that we do not copy the property management company or any resident. My understanding from our previous PM was that as long as we are not making decisions or votes and were only communicating upcoming topics this is ok and not official business. If we copy people in it becomes official business, Is this accurate?

ANSWER:

A board member should not copy a resident on a communication to add an item to the agenda or on any other communication with the board. Boards make decisions at duly noticed board meetings and any discussions leading to decisions between board meetings are in violation of the law governing community associations and most likely your governing documents. Email is permitted as a form of communication between board meetings – but it is discouraged by many professionals because the emails quickly cross the line between communication and conducting business. Copying management does not make it "official" nor does copying others. Often an email’s intent is misunderstood or an individual uses email to attack another’s viewpoint. It is not uncommon for emails to say things in a manner a person would never say in person.

While emails are not usually part of the official records open to inspection, that is not always true. If the board is conducting business, then your personal emails may be required in a request for official records. Emails are always discoverable in litigation and deleted emails may be considered evidence tampering.

Volunteer board members should rely on management to conduct the day to day business of the association in between meetings with the board appointed liaison communicating with the manager. If a board member would like to add something to the agenda for an upcoming meeting it is not necessary to include the entire board or anyone else in an email. The bylaws usually provide a method for a board member to request adding a subject to the agenda – which can be as simple as making the request to the president. Individual board members responding to the concerns of residents is also discouraged. Residents should contact management for maintenance concerns. The issue with emails is that emails rarely stop at discussion and very often evolve into to conducting business without a meeting.

QUESTION:

We have an upcoming vote to amend our condo/building declaration in which the amendment is to increase our leasing guidelines from 5 to 8 units. My question is if there are current board members who are in the process of selling their unit should they be allowed to vote on this matter. One board member has already made it known they are attempting to sell their unit and the other is currently under contract to sell. In either scenario is this considered a conflict of interest? Should these owners be asked to abstain from voting?

ANSWER:

Until the unit is sold, and title transferred, an owner is entitled to vote for a declaration amendment regardless of whether or not the owner is also a board member.

 

***

(8-12-20)

QUESTION:

Can a condominium with more than 10 units opt out of the statutory election procedures requirements?

ANSWER:

The legislature amended Florida Statute 718.112(2)(d)(8), effective October 1, 2008 regarding the ability to opt out of Chapter 718 the statutory (first notice, second notice, inner and outer envelopes, etc.).

Previously any condominium association could take a unit owner vote to opt out of the statutory election procedure. The statute was changed such that only condo associations with 10 or fewer units can opt out of the Chapter 718 election procedure.

QUESTION:

I have read through your comprehensive website/blog and need some advice for my circumstance. I reside in a condominium in Bonita Springs, FL called Morton Grove. The governing documents for Morton Grove were written and recorded in July of 1990 and expiring in July 2020. We received an agenda notice in the mail that the Board would hold a meeting on July 8th at 5:30 PM via a Zoom call. There was one agenda item under New Business ...Vote to renew Morton Grove Association Governing Documents with the State of Florida as outlined in the Statement of Marketable Title Action. There was an enclosure with the Agenda which was a free form document with a header of "Statement of Marketable Title Action" utilizing a provision in Chapter 712 to provide notice to the membership and amend the documents from time to time. However, it seems like they are using Chapter 712, when they should be using 718, as we are a condominium. Based upon what I have read it seems Chapter 712 is only effective for and HOA, not a COA.

ANSWER:

In 1963, the Florida legislature adopted a law entitled the Marketable Record Titles Act (hereinafter ‘MRTA’), the purpose of which was, and still is, to legislatively abolish certain ‘stale’ recorded claims affecting real property. For instance, during the early boom years of Florida’s population growth, many documents were recorded that now have no continuing effectiveness and merely ‘junk up’ the title (e.g. timber leases owned by long departed companies). Notwithstanding their ineffectiveness, those claims still needed to be listed on all title insurance policies until MRTA was adopted.

The Official Record Book and Page of the Declaration must be in the root of title for each lot for the previous 30 years or its restrictions are extinguished. Suffice it to say – the issue of determining whether a document is within the root of title is complex BUT it is important to note that the official record book and page of the Declaration of Condominium is in the legal description on the Deed and therefore always in the root of title.

This is a very complex subject and is not appropriately explained in this forum, so my answer may cause more questions – but suffice it to say that the preservation of the Declaration is not required in a condominium because condominium association documents do not extinguish because of the Marketable Record Titles Act (MRTA). That is the reason that Chapter 712 is only effective for an HOA. The reason condominium documents are not extinguished by MRTA is that the Declaration is part of the legal description – so every time a deed is recorded referencing the Declaration and the Official Record Book and Page where it is recorded–it causes the Declaration to always be in the root of title.

Perhaps your association board was preserving the documents for a Master Association that is established pursuant to Chapter 720, Florida Statues, that includes your condominium – therefore it is required to follow the process of Chapter 712. In order to preserve the governing documents only a board vote is required provided that such is accomplished before the governing documents are extinguished as to any lot in the community.

 

***

(7-29-20)

QUESTION:

Our 5-person board has a vacancy which according to our documents, can be filled by a majority vote of the Board. There is one owner that has requested to be considered but the majority will not vote for that person. What recourse is available for that person to fill the vacancy?

ANSWER:

If the board cannot obtain a majority vote of the board to fill the vacancy – the only alternative is to hold an election to fill the vacancy. If there is only one member that submits his or her name to fill the vacancy – they are seated without the necessity of having the owners vote.

QUESTION:

I own a condo in South Florida. I have satisfied the rental restrictions (2 years) and I have been looking into renting the unit. The board sent an email explaining that they require one month’s rent for security deposit if I want to rent my unit. As the owner, I am responsible for any damage to the unit or common areas. Also, they are requiring a 750-credit score for any prospective tenant. I do not see either of these things in their governing documents. Is this legal? And how could I fight these requirements?

ANSWER:

It the association is going to collect a deposit for damage to the common areas as a requirement for renting the unit, the Declaration would have to contain a provision authorizing such to be collected. The Declaration would have to allow the Board to develop additional criteria for approving rentals- and if such a provision is not in the Declaration – the board cannot require a minimum credit score. The credit score requirement would have to be applied consistently to all rentals and the requirement would have to be reasonable.

QUESTION:

Our condominium recently put a candidate on the ballot that did not return a timely intent to run, Is it true that candidates MUST return a signed candidate certification form in order to be eligible to run for the board?

ANSWER:

The Division’s informal, unpublished, position is that all candidates for the board MUST complete and return a signed candidate certification form. Further, the certification form created by the Division implies that submitting the form is required. In summary, the Division construes the statute to require candidates to return the form to be eligible to run. The legislature also amended Florida Statute 718.112(2)(d)(3), to require a condominium association, when it mails out its first notice of annual meeting and election, to include in the mailing a candidate certification form created by the Division. The certification form states that the candidate has read and understands, to the best of his or her ability, the governing documents of the association, Chapter 718, and any rules created by the Division.

 

***

(3-25-20)

QUESTION:

What precautions should we be following in these uncertain times?

ANSWER:

First and foremost – common sense must prevail. We have been inundated with information – but the underlying message is the same – Wash your hands – really wash your hands – don’t just pass them under water and consider them clean. Wash your hands with soap and water for longer than you ever did before – avoid being in groups of people – and stay home.

Our generation and/or our parents and grandparents, were drafted to go to war – you are being asked to sit on your couch – you can do this!

While we are facing uncertain times – there is one thing we can all be certain of – we will see this through to the finish line. While we might not return to life as we once knew it – perhaps we can emerge better than we were before?

We have been asked for guidance regarding the duties of the Board of Directors relating to what they should and should not do or permit. There is nothing so important about the business in your condominium, co-op or homeowner’s association that requires any of us to be in situation that may put us at risk. The health of each and every one of you matters.

People are discussing and dissecting emergency powers – when in fact common sense should prevail. What is so important in your association that cannot wait – other than developing a policy for dealing with Covid-19? If there is something that cannot wait – conduct the meeting via teleconference or if the board can agree unanimously – by Written Consent in Lieu of a Meeting.

Our advice to our clients is that since there is not any law or case law to rely on – common sense must prevail:

Cancel any public meetings until we are told that we can resume activities and feel comfortable in the presence of others.

If you have an annual meeting with no election – cancel it.

If there is an election and you vote by the secret ballot double envelope method -the votes can be tallied and if you have the ability to broadcast the procedure – do so – if not video the entire process and preserve the video as part of the official records.

Limit or restrict access to any common area that cannot be sanitized.

Protect your staff from infection by providing them with proper cleaning supplies and protection.

Step up the cleaning of common areas that cannot be closed or avoided.

Prepare for the unknown while concentrating on what we do know.

Follow established CDC protocols and recommendations.

Should you or a member of your household test positive for Covid-19, follow the recommendations of your medical professionals – but please do not risk infecting others. If you need help, ask for it – it is your obligation to do everything you can to prevent infecting others.

Respect the privacy of others and rely on the advice of your local health department regarding residents that have tested positive – do not spread rumors.

We will vigorously defend your decisions to conduct the business of your association in a manner that will protect you and your neighbors from being infected with this virus. The issue is not how few have contracted the virus nor the reports that 80% who do will have mild symptoms. The issue is – we don’t know who the 20% are that will not fare so well and we, as individuals, must do everything we can to contain the spread of this virus. It has been reported that it took 3 months for 100,000 people to become infected – but it only took 12 days for the next 100,000 to become infected. Stay home – stay safe!

 

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(3-11-20)

QUESTION

Our condo association has sent out proposed changes to AMEND AND RESTATE the DECLARATION OF CONDOMINIUM OWNERSHIP. Part of the wording for the changes is as follows:

"Amendments must be approved by at least two-thirds (2/3) of those owners who are eligible to vote and participate in the voting, in person or by proxy, at a membership meeting, provided that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid."

I think they have defined eligibility as those owners who are entitled to vote as long as they are not delinquent on condo fees or assessments. The question is, if we have owners who are behind on their condo payments and are delinquent and therefore are prohibited from voting, according to State Statutes should their votes be automatically counted as a no vote to the changes?

ANSWER:

A unit owner that has had their voting rights suspended, pursuant to the governing documents and/or the law is an ineligible voter that is not counted at all. In fact, ineligible voters reduce the number of votes required because the ineligible voters are deducted from the total number of units before the percentage required for a quorum and affirmative votes to pass are determined.

This is a frequent question – and the answer is always the same. A non-vote is not counted as anything. It is merely a non-vote. In some instances, it may have the same effect as a no vote, because it cannot be counted towards the percentage needed to pass an amendment. Despite the fact that the effect of a non-vote may sometimes be similar to that of a no vote, there are times when counting a non-vote as a no will change the outcome. Therefore – a non-vote is never counted as anything.

In your question, you mention that your documents state the following "two-thirds (2/3) of those owners who are eligible to vote and participate in the voting, in person or by proxy, at a membership meeting, provided that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid."

This wording is complicated, and it changes the way the outcome of the vote is determined. The first part of the process requires we determine how many unit owners must be present to establish a quorum. We can determine that by looking at the last part of the provision, first.

FIRST ESTABLISH QUORUM REQUIREMENT: "that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid" This last part of the sentence establishes the quorum required in order for the meeting to proceed. If we have thirty eligible voters, sixteen must attend the meeting in person or by proxy for the meeting to proceed. If only sixteen people (a majority in attendance) are present at the meeting, eleven (two-thirds) of the sixteen present must vote yes for the matter to pass. If only ten people attend in person or by proxy, the meeting cannot be held because there is not a majority of the membership present. If all thirty of the residents attend, twenty are required to vote yes for the matter to pass.

NEXT, DETERMINE IF PASSAGE REQUIRES A PERCENTAGE OF THE ENTIRE MEMBERSHIP OR JUST A PERCENTAGE OF THOSE IN ATTENDANCE.

Pursuant to the following in your governing documents, "and participate in the voting, in person or by proxy, at a membership meeting." The affirmative vote is not required of the entire membership – just those present in person or by proxy as long a quorum of a majority of the members attends the meeting in person or by proxy. If you omit the words "present in person or by proxy", two-thirds of the entire membership would have to vote yes to pass the amendments.

FINALLY, DETERMINE THE ACTUAL PERCENTAGE REQUIRED TO PASS WHICH IN YOUR CASE IS: "two-thirds (2/3) of those owners who are eligible to vote" – there are provisions in Florida law and many governing documents that can cause a unit owner to have his voting rights suspended, but the process to suspend the voting rights has to be followed. If the suspension has been properly implemented, the ineligible voters are deleted from the total number of units, thereby decreasing the number of votes required. For example, if six residents are delinquent and their voting rights have been suspended at a duly called meeting and they have received proper notice of the suspension, the total number of units eligible to vote drops to 24. Therefore, the required number of units present in person or by proxy, according to your governing documents requirements, is a majority of eligible voters – or thirteen. As you can see, determining a valid vote is complicated enough without attempting to count non-votes as anything.

 

***

(2-26-20)

QUESTION

We have a few questions. The term limited law isn’t clear in Fl. However we had an election and the past President said he would abide by the 2/3 vote. He didn’t get 2/3 votes and he stood up and said I have been on the board 8 years and only got 73 votes so I don’t get to serve on the board I didn’t get 2/3 votes. All meetings are recording where he went on to say he would fight he didn’t want to spend the money on legal fees if he didn’t get the votes. With that said. Now after two weeks someone calls him and says the 2/3 isn’t a final deal and you need to come back and fight for your seat. Now the new board is in place and he wants to fight to come back after he rescinded because he didn’t have enough VOTES.

ANSWER:

We have always taken the position that the law is deemed prospective, and therefore the eight-year period term limit begins as of July 2018. The term limit law has always been clear to attorneys and it appears the legislature will be attempting to make the provision clearer during this legislative session by inserting language that clarifies that the eight consecutive terms are counted from 2018 forward.

Florida Section 718.112(2)(d)(2) of the Condominium Act was changed effective July 2017 and amended in July 2018. This legislation provides that a board member may not serve more than eight (8) years unless approved by two-thirds of the total voting interests or unless there are not enough eligible candidate to fill the vacancies.

In Florida, all laws are presumed to apply prospectively, unless they are remedial in nature, or designed to clarify law already in effect, and the legislature clearly expresses its intention that the law is to apply retroactively. This is the whole purpose of the effective date, because it provides adequate notice to the public of when an act is required to be performed. In the case of the newly added language regarding director term limits, the legislature did not clearly express in the statute its intention for the new term limit to apply retroactively. Even if they had – it would have most likely been contested as unreasonable.

There is another consideration that is being discussed by attorneys that practice in this area of the law. There appears to be a valid argument in that if the Bylaws do not specifically state that the provisions are subject to Chapter 718 of the Florida Statutes as may be amended from time to time – it may be argued that term limits will not apply to that particular association pursuant to case law.

QUESTION:

The builder/developer Declarant of our HOA in Naples issued "Limited Common Element" assignments of parking spaces to homeowners. However, these assignments were never recorded with the county land office and are not indicated on the recorded plat plan. The current HOA Board wants to eliminate all assigned parking spaces and simply declare that all parking spaces are common property and any resident can use any parking space available on a first come first serve basis.

Question: Are the "Limited Common Element" parking space assignments from the original Declarant builder still binding since they were never recorded ??

ANSWER:

Limited common element parking assignments are not required to be recorded to be deemed an appurtenance to the unit. A review of the provisions in the Declaration should reveal if the board has the authority to assign, reassign, or eliminate the assignments. As a Unit Owner, you should make an inquiry and request that the board seek an opinion form its attorney prior to proceeding with revises the parking assignments.

 

***

(2-12-20)

QUESTION

First, a great "Thank you" for all of the valuable information in your web site. Second, an even bigger "Thank you" for including supporting citations along with your opinion. Is there any supporting documentation for the statement that rental restrictions must be in the Declaration? Is there requirement for Condo’s and HOA’ s?

ANSWER:

In both Condo’s and HOA’s, the Declaration is more than a mere contract spelling out the rights and obligations of the parties. It sets forth the extent and limits of the enjoyment and use of real property and the individuals use interest therein. The Declaration contains the covenants running with the land and are recorded in the official records of the county where the property is located. Court cases over the years have established that unless restrictions limiting the use of real property are contained in the Declaration, the restrictions are unenforceable. In addition to case law, many Declarations contain the language that illustrates why restraints involving conveying real property are to be contained in the Declaration. Such language – while not required to require the restriction be contained within the Declaration – is usually located on the first page of the Declaration – after the Whereas clauses – such as:

NOW, THEREFORE, THIS DECLARATION is made this 1st day of January, 2012, and which declares that the real property described in herein, is and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements, charges and liens set forth below in the Associations" Declaration of Covenants, Restrictions and Easements.

It is because of this language and/or case law that an association is advised to make sure all restrictions regarding sales and occupancy are contained within the Declaration and not merely a board rule.

 

***

(1-29-20)

QUESTION

I am 73 years old. I live in a community and we have an HOA

My question is a silly one but not to several owners. Is it illegal to post a small business card on the bulletin board of our community? I am part owner of the business and I can’t see what harm it does to post one of these small cards on the bulletin board. Our president said we can’t do that. Omg. Do they not have anything better to do? Do they have the right to bully us senior citizens? Please answer, several of us are waiting your response. It’s a reputable business that many owners use. Pls help

ANSWER:

A community association is a corporation governed by its Declaration, Bylaws, Articles of Incorporation and rules and regulations. In most communities the rules and regulations are adopted by the board of directors, who are elected to conduct the business of the corporation. If the Board has adopted a rule that prohibits owners from randomly posting on the community billboard it would be a violation of a board enacted rule to continue to post a business card. The Board has the authority to enforce its rules. Regardless of whether or not a business is legitimate or used by or owned by residents the board may have a reasonable reason for limiting posting on the community bulletin board. That said, perhaps there is a community publication in which you could advertise your business, or a different location designated by the board for the residents to post notices and / or business cards.

QUESTION:

Is the Board required to allow owners that are out of town to call in to the annual members meetings? Many of us live out of town and we would like to attend by telephone.

ANSWER:

No, the board is not required to make a provision for owners to participate by telephone. The Florida statutes contemplate permitting board members- not owners - to attend meetings by telephone. In order to effectively conduct business, there has to be a system wherein speakers are allowed to contribute in an organized manner – which would be difficult if not impossible if hundreds of members attend by telephone. Most associations do not have the equipment or personnel available to manage such attendance. We would not recommend that an association compromise its ability to conduct a seamless election and or association business by investing in the technology or the staff required to permit owners – other than board members – to attend by telephone. Such attendance may work in association that has very few members – for example 10 or fewer – but for a larger community the disruption far outweighs the convenience.

***

(1-15-20)

QUESTION

The majority of our Condo Association membership voted against the adoption of the recently Amended By-Laws prepared by Board of the Directors. As a result, members were advised that unless we change our vote to approval of the new By-Laws within 90 days, the document will be nullified and the process of creating a new one will be costly.

We then proposed to create an Addendum to the documents, so the new By-laws can be approved by the Members without starting the process anew.

However, the representative of our Management Company declared that Florida Statute does not allow Addendum.

We have reasons to believe that not to be true.

Can you please advise us on this matter?

ANSWER:

Not sure why your community association manager is offering legal advice instead of your attorney – but it would be in the association’s best interest to get clarification from its attorney. One of the errors volunteer boards often make is not asking the attorney for advice - thinking they are "saving" money for the association.

When voting by written consent – the association has 90 days to obtain sufficient written consents to approve amendments. If the majority of the membership is not in favor of the amendments, the amendments will fail and force the board to either start over or give up. The 90 days to obtain sufficient votes cannot be extended. The board cannot make modifications to the amendments after votes have been received without staring the voting process over.

The board should determine why the membership is opposed to the changes – before it modifies the process. Has the board taken the time to educate the membership as to why the amendments are being presented? Has the membership considered the amendments objectively?

QUESTION:

I am on the board of a condominium association in Broward county Florida. It is a 2-story building with 12 units on each floor for a total of 24 units. A wheel chair lift was installed on the outside wall many years ago and in 2013, because residents were getting stuck and we deemed it dangerous and very expensive to maintain in proper working order, all 24 owners signed a document stating that they agreed to shut it down. Now, in May 2019, we have received a notice from the county that we are in violation of 3 codes. After much discussion with chief elevator county inspector and others, I have been told that once a wheelchair lift has been installed it must be kept in safe working order for all eternity, even if all of the owners don’t want it. Because of the length of time that it has not worked there is an enormous number of repairs to be done if it’s at all possible to repair it. The cost will be extreme. I have tried to find specific info. In Florida statute 399 and disabilities act 553, but I haven’t succeeded. I would really appreciate your help. Thank you

ANSWER:

Your best source of how to correct a code violation is the code enforcement department. If there is a specific code violation, ask them to provide you with the code you are violating. We are not aware of any provisions in the law requiring the lift. If the association wants to abandon the use of a lift, the code more than likely requires it to be removed. Merely abandoning the use of the lift without removing it may be the reason you are being cited.

 

***

(1-1-20)

QUESTION

Our condo association recently held its annual elections for the board of directors. When the results were announced, a losing candidate asked the incumbent board how many votes he received. The board member responded that he wasn’t entitled to know. I would think that any resident should be entitled to know how many votes a candidate (winner or loser) received. Barring that information makes the process less than transparent and forces one to wonder why that answer was given. Thanks in advance for a reply.

ANSWER:

Election results, including the outer and inner envelopes and ballots are part of the official records of the association. The board can announce the election results and include how many votes each candidate received or advise an owner that in order to review the total votes a candidate received – he or she can make a request for access to the official records.

QUESTION:

Hi and thank you for your time. I live in a Florida condominium. Our original docs and no future amendments over the years mention anything about limiting rentals in the community to 1 time within a 12-month period. Example, as a multi-unit landlord in the community, if a new tenant ditches out on me in the first month, the association will not allow me to rent to another tenant until the original 12-month period of the existing lease has expired; 1 rental in 12 months no matter what. Yet I can find no empowerment for them to enforce such a rule. By our docs, ANY Rules or Regulations, or amendments, MUST be approved by at least 66% of the entire membership of the Association, which did not happen. Are they able to do this?

ANSWER:

Rental restrictions must be in the Declaration and are not enforceable against an owner unless the restriction is contained within the Declaration. The Declaration contains the covenants running with the land. If the restriction prohibiting or limiting rentals is not in the Declaration but is only contained in the bylaws, articles of incorporation, or rules and regulations, it cannot be enforced. It is important to note – if there is an amendment to the Declaration that limits rentals – it cannot be enforced against a Unit owner that does not vote in favor of the restrictions and will not apply to that particular unit until title is transferred, pursuant to FL STAT 718.110 (13):

An 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.

 

***

(12-18-19)

QUESTION

Our condominium association currently has barrel tiled roofs. The board has determined that the roofs need to be replaced and gave the unit owners (150 units) the option to vote on either barrel tiles or shingles. Two (2) forms were sent to the unit owners; one if you wanted to vote for Shingles and one if you wanted to vote for Barrel Tiles. The form also stated, "All votes will be counted and tallied, once a 75% approval is obtained the community will be notified and Roof Replacement will commence." The Property Manager, who opened and tallied the votes (the exact time and place of the tally is unknown but it was not at the meeting attended by unit owners) announced at the meeting that 124 votes were received, 71 for shingles and 53 for barrel tile. The unit owners were also told that the vote for shingles was even higher since some of the unit owners had asked for their vote to be changed from barrel to shingles. Is that legal if the unit owner had not initialed the change but had merely sent an email? It was further said that since the majority of the votes were for shingles, shingles won and since the majority who voted for shingles selected color a, that would be the new color since it was close to the color of the barrel tiles we now have. A number of unit owners did not agree with this, citing the Declaration of Condominium as recorded in the official records of our county, which states that:"There shall be no alterations or additions to the common elements or limited comment elements of this Condominium where the cost thereof is in excess of ten (10%) per cent of the annual budget for common expenses...except as authorized by...and the Board of Directors, and approved by not less than seventy-five (75%) per cent of the unit owners of this Condominium..."

Are the unit owners misinterpreting the Declaration in thinking that in order to change to shingles 113 units (75% of 150) need to approve the change or is the Property Manager and Board correct in stating that the majority of those who voted determines that the new roofs will be shingles?

ANSWER:

The Association attorney would be the appropriate authority to answer this question in regard to the specifics of the Associations’ governing documents. In general - absent any other provision that modifies the provided section of the Declaration- it appears that the affirmative vote of 75% of the unit owners must be obtained prior to a material alteration – which is a perceptible change to the common elements – being undertaken. If the vote was taken by written consent in lieu of a meeting, the Association has the authority to tally the votes when received. A vote may be rescinded in writing – but the unit owner would need to complete another consent by the deadline for receiving votes to vote for a different option.

The procedure for voting by written consent is found in Section 617.0701(4)(a) of the Florida Not For Profit Corporation Act. This provision of state law allows a community association to take action without a vote at a meeting if written consent is given by the association members having not less than the minimum number of approvals necessary to authorize the action at a meeting at which all members entitled to vote on such action were present and voted. Additional requirements include: 1. Written Consent. Such action must be evidenced by a written consent describing the action taken, dated and signed by approving members and delivered to the association. 2. 90 Days to Obtain Consent. Sufficient written consent forms must be obtained within 90 days of the date of the earliest dated consent that is delivered to the association. 3. Revocation of Consent. Any written consent may be revoked prior to the date that the association receives the required number of consents to authorize the proposed action. A revocation is not effective unless in writing and until received by the association. 4. Notice of Action Approved. Within 30 days after obtaining sufficient approvals for the action, notice must be given to those members who are entitled to vote on the action but who have not consented in writing. The notice must fairly summarize the material features of the authorized action. 5. Written Consent Considered a "Meeting Vote." A consent signed under this section has the effect of a meeting vote and may be described as such in any document, such as a Certificate of Amendment filed in the Public Records. 6. Record of Approval Filed With Association Minutes. Whenever action is taken by written consent, the written consent document signed by members consenting to such action or the written report of inspectors appointed to tabulate such consents must be filed with the minutes of proceedings of members.

 

***

(12-4-19)

QUESTION

We recently voted by mail to make amendments to each of our governing documents--our Declaration, Articles of Incorporation and Bylaws. A special joint meeting of the membership and our Board of Directors was held on Monday, October 14 (the cut-off date for voting), for members to vote in person, and to count the mailed-in votes and the in-person votes. When the meeting was scheduled, the Board was not aware Monday, October 14, was Columbus Day and a legal government holiday with no mail delivery. Also, because mailed-in ballots were sent to our property manager's office who is not open on Saturdays, all ballots mailed and postmarked on Thursday, October 10 and Friday, October 11, were not received by them until Tuesday, October 15.

Question 1:

Because homeowners in good faith mailed their ballots in time to arrive by the Monday, October 14, the voting cut-off date, because they were not delivered on that date due to a holiday, are their votes invalid even though the postmarks on the envelopes show they were mailed on the 10th and 11th?

ANSWER:

If the residents were voting by proxy – the association could have adjourned the meeting to a date certain provided the reconvened meeting was held within 90 days from the date of the meeting. If the residents were voting by written consent – the association has 90 days to collect all of the votes from the date the first written consent is received.

ANOTHER SITUATION:

We have a homeowner who went through a divorce and his wife was to sign a quit claim deed relinquishing the house to her ex-husband. He provided his divorce documents to the Board which state this fact, however, his ex-wife has not signed the quit claim deed, and her name still appears on the records of the Volusia County Property Appraiser.

Question 2:

Without the ex-wife's signing a quit claim deed to her ex-husband, can we count his vote?

I can't find anything in Florida Statutes 617 and 720 that resolve these issues. I hope you're able to give me guidance with our dilemmas. Thank you.

ANSWER:

If the association bylaws do not require a voting certificate naming the designated voting member, the husband or the wife may submit a vote – if they fail to agree on the vote for the matter – their vote is disregarded. If the bylaws require all members to designate a voting member if the unit is owned by multiple parties or a corporation, a vote received from other than the voting member must be disregarded. In your example – if voting certificates are required and the wife is the designated voting member– the vote must be disregarded if submitted by the husband. Unless the husband can provide proof that he is the sole owner of the property – you must disregard his vote if the wife is the designated voting member.

 

***

(11-20-19)

QUESTION

We are in a condo complex with 275 units, 6 floors. The first floor is "under building" parking, the spots are each deeded. We own 2 spots. We were informed that we must move our vehicles and empty our 2 spots with one weeks’ notice so that roofing material (our entire 6 building complex is having roofs repaired from Irma) can be staged in them. We are out of state and will not return for several weeks. We were told the complex cannot wait until we return - they refuse to use other areas to stage the material. We were told our cars will be towed else they risk being damaged by tar and debris.

Can the association tow our vehicles without our consent?

I have not been able to find anything in the condo docs regarding this.

ANSWER

Whether or not the complex can tow your vehicles is not easily answered. First the association is required to follow all of the statutory requirements regulating towing – such as proper signage identifying the towing company and proper notice. The association must follow all provisions of the governing documents. Very often parking spots are limited common elements for which the association has greater control. In your situation you are advising the spots are deeded to you – therefore I would suggest that you ask the association to have its attorney provide you with a legal opinion verifying the authority to tow.

QUESTION:

Thank you for all the commentary on HOA matters. Our covenants clearly establish an Architectural Review Committee with Guidelines approved by the Board of Trustees. From time to time, the Guidelines are amended by ARC and adopted by a BOT vote at duly called and noticed meetings. There are several Neighborhood Associations, each with elected officers, in the community plus the Master Association with the BOT. The covenants state that prior to a change of an ARC Guideline, the BOT must notify the Neighborhood Associations (i.e., the presidents thereof) 30 days in advance of the meeting at which a vote is to be taken. So my question is this: in response to a question on 6/5/19, in reference to keeping an SUV, you stated "If the restriction is in the declaration, …you may have a problem…, unless you can prove that the board failed to enforce this restriction for more than five years." Is there legislation or case law that clarifies this failure to enforce? If our BOT has not notified the Neighborhood Associations over the last 10 years or so, is that clause in our declarations deemed unenforced and no longer applicable? Thanks again for your help.

ANSWER:

There is case law that established that a covenant must be consistently enforced and enforcement cannot be arbitrary. The defense of selective enforcement is based upon a case decided by the Supreme Court of Florida in 1979. Essentially, an association cannot enforce the restrictions in the recorded documents or those contained in the rules and regulations in an inconsistent or arbitrary manner. The issue is addressed by the courts and arbitrators frequently and as explained in Oceanside Plaza Condominium Association, Inc. v. Salussolia: the claim of "selective enforcement will succeed if the failure of the Board to enforce documents in other instances bears sufficient similarity to the case at issue as to warrant the conclusion that to permit the enforcement in the instant case would be discriminatory, unfair, or unequal."

The case that establishes the method for enforcing a provision that has been ignored or "reviving" a provision that has not been previously enforced is derived from a condominium case called Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Ass’n, Inc..

The legal doctrine that an unreasonable delay in seeking a remedy for a legal right or claim will prevent it from being enforced or allowed if the delay has prejudiced the opposing party is laches.

 

***

(11-6-19)

QUESTION

I live in a 55 Condo in Florida. I am on the Board of Directors. We have a resident, who after our monthly Board Meetings, consistently and immediately puts in a request for the minutes to the meeting. I know we have 10 days to reply to his record request. My question is, does the same resident have the right to request unapproved minutes, month after month year after year? He used to post the minutes to an approved website which he no longer does. How can we curb this consist request and does one lone resident have the right to continually make the same request?

Thank you in advance for your attention to this question.

ANSWER

Yes - the same resident may request the draft minutes, but you are jumping through hoops you may not have to jump through. Draft minutes are part of the official records of the association and are available to review pursuant to an official records request - BUT draft minute are not usually available immediately after the meeting - therefore your response should be that there are not any draft minutes available. There is not a requirement as to when the draft minutes should be completed. Finally - corporate minutes should only reflect the business conducted at the meeting. Business is conducted via motions, seconds and recorded votes.

QUESTION:

I have read a number of times in your answers to questions that an amendment to change 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. I was wondering if a unanimous "yes" vote of the owners to change the proportionate share assigned was also in effect back in the 1960's, 1970's and/or 1980's? When did unanimous voting for changing the proportionate share come into effect in Florida? How does one find out if an (1987) amendment in the Condo Documents to change the proportionate share assigned was in fact voted on unanimously? There is no mention of unanimous voting in the amended Condo Document from 1987. Thank you for answering my questions.

ANSWER:

The change is ratified regardless of what law may have been in effect at the time as the membership would have to contest the vote within the statute of limitations - which is usually five years.

 

***

(10-23-19)

QUESTION

My unit was damaged by sewer water due to a clogged main sewer line. Water backed up into the toilet which overflowed and destroyed 3 rooms of laminate flooring. All flooring needs to be replaced. The association has agreed to reimburse us for the plumber $900 but not the damage to our unit. We are told this is Florida law and the owner are responsible for any interior damage. We would need to file a claim with our insurance Co. I have researched the internet and cannot find anything related to this matter.

ANSWER

Determining liability when there is water intrusion is complicated and each event should be reported to insurance for the condominium and the unit owner. The law is specific in that a unit owner is responsible for floor covering – which would be anything installed after the slab. There are sometimes specific inclusions or exclusions in the governing documents and there are issues when the cause is determined to be negligence. Therefore – we always recommend the insurance be advised of the event as the insurance policies usually will take into account all of the variables.

QUESTION:

Under the rule of Florida statute 718 if the condo association choose to vote using electronic voting section 128. The association assign voting deadline as it is required under section electronic voting. Can the association adjourn the voting meeting and accept more votes after the voting deadline?

ANSWER:

If the association does not have enough votes to achieve the quorum required to proceed with the election it may adjourn the meeting to a date certain in order to pursue achieving a quorum. The mechanics of voting electronically is complicated and the specific provider of the software to implement would have to answer if its program can retain the votes already received and allow others to vote or if the electronic process would have to be started all over.

***

(10-9-19)

QUESTION

Can a unit owner assign the right to vote in election to another person by power of attorney?

ANSWER

No, the statute is clear that a unit owner shall not permit any other person to vote his or her ballot. Persons holding a power of attorney may attend a board or a membership meeting in the owners place if the documents do not specifically restrict this. They may also vote in matters other than the election of directors.

The usual method for assigning the right to vote authorized by Condominium Act is the use of proxies by an owner but there are restrictions on the purpose for which they can be used. The bylaws for most condominiums permit absent owners to participate and vote in membership meetings by proxy, except that a proxy shall not be used in the election of the board. All condominium board elections must be by ballot completed by the member entitled to cast the vote.

QUESTION:

Our condominium vice president never comes to meetings, Can the board replace him?

ANSWER:

Most 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 membership.

 

***

(9-25-19)

QUESTION

I am renting in a condominium in which the owner of the unit owes money to the association. The association told me yesterday that they were not going to let any one of my visitors in because the apartment owes money to them. Can they do that? Can they deprive a visitor from going in because of that? They are saying that the new law section 718.16(11) is protecting them.

ANSWER

Effective July 1, 2010, Chapter 718 of the Florida Statutes was amended to reflect these changes to the law. As a result of these revisions to the law, as of July 1, 2010, the association may suspend the use rights for the common elements, common facilities or any other association property if a unit owner is delinquent for more than ninety days in the payment of a monetary obligation due to the association, except that association may not suspend the right to use limited common elements intended to be used only by that unit, common elements that must be used to access the unit, utility services provided to the unit, parking spaces or elevators. Additionally the association may legally suspend the owner’s voting rights.

The action suspending the rights of the owner (or tenant) must be done at a properly noticed Board meeting. The Association must provide fourteen (14) days written notice to suspend the use rights for these common facilities and to suspend the voting rights for any owner who is delinquent for more than ninety days in the payment of a monetary obligation due to the association.

The legislature included a very important provision in the Statute regarding collection of assessments. The Association also has the authority to step into the shoes of the Landlord (delinquent owner) and require the tenant to pay the rent to the Association in an amount equal to the amount that is owed to the association. If a tenant occupies a unit, and the unit owner is delinquent in paying any monetary obligation due the association, the association can demand and require that the tenant pay the rent to the association to satisfy the monetary obligations owed to the association.

The association must make a written demand to the tenant. The demand is continuing in nature. Upon demand, the tenant must pay the monetary obligation owed the association until the association releases the tenant or the tenant discontinues the tenancy. The association must mail written notice to the unit owner. The association must provide receipts to the tenant for any payments received. A tenant who acts in good faith in response to the association’s written demand is immune from any claim by the unit owner. If a tenant prepaid rent, and the tenant provides written evidence to the association of same, the tenant shall receive a credit for the prepaid rent and must make subsequent rental payments to the association. The landlord unit owner is required to provide the tenant with a credit against rents due for the amount of money the tenant pays to the association. The association can evict a tenant if the tenant fails to pay the required payment to the association.

While your association is refusing to provide access for your visitors, you are not prevented from meeting them in the lobby to provide access. Furthermore, the association has the authority to require that you pay your rent to the association. The association will apply your rent to the delinquent amount owed by the owner. Once the delinquency is cured you will be entitled access to all of the amenities you are being restricted from using because of the delinquent status of the owner.

 

***

(9-11-19)

QUESTION

I suspect I know what your answer to my question will be, but I want to ask it anyway in the hope that perhaps condo law in Florida can be changed someday to allow my thought to become legal.

We have 135 coaches in our mobile home park in Clearwater, Florida. We are subject to Florida Condo Law - 718. Two thirds of our residents go back north for about 2/3's of the year. Frankly, those 2/3 come to our park to escape the cold weather in the north, and to have fun. Most only stay 3 or 4 months each year.

Here's my question: Would it be legal to add to our by-laws a provisions that says those residents who are full time get a 1.0 vote on issues that require resident approval, and those who are part time get a prorated vote based on how long they are in our park? In other words, a part timer who stays 3 months (1/4 of the year) would get a 0.25 vote, a 4-month stay a 0.33 vote, and so on.

This seems only fair to me that a full-time resident's vote should be weighted more heavily than a part time resident's, since the part time residents are only here a few months each year, and while they are gone, do not have to abide by whatever issues we vote on.

I know they still pay their maintenance fee all the while they are gone, but that is their choice. They knew that when they first decided to stay in our park.

Thank you.

ANSWER

The answer is- no. Florida is a transient state where many communities have owners that are part-time residents.

Ownership rights do not cease merely because the owner is not on property full-time. You cannot change the proportionate share of the voting rights of the residents without 100% of the residents agreeing to the change.

If your concern is lack of participation due to owners being absent there are options. One option is to reduce the number of residents required for a quorum and allow the majority of those present in person or by proxy to ratify an action requiring the vote of the owners. This would require a vote of the owners to approve.

 

***

(8-28-19)

QUESTION

Our condo association of over 300 units recently passed a new bylaw to require owners to purchase homeowners’ insurance. 

The deadline to purchase Insurance was June 30.  There are well over 100 owners that are non-compliant with the new bylaw.  The Board of Directors want to fine the owners for noncompliance. They property manager will be sending out a final notice letter to all owners indicating that they are non-compliant and if insurance is not purchased within two weeks the board will then fine the owner. The fine stated in the letter will be $250. Per board members this is an aggregate fine since the due date was June 30. It was my understanding that maximum fines were $100 with an aggregate total of $1000 max. Can the board set the fine to the owners at $250 without any hearing from the fining committee to this point?

The property manager also insists that the fining committee will be appointed by the property manager and that the fining committee will remain anonymous.  It is stated in Statute 718.303 that the board is to appoint the fining committee. What is the next step to ensure that this process is handled in a legal manner?

ANSWER

It 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 to withstand challenges from owners regarding the legal sufficiency of an imposed fine. The procedure for fining in condominiums is mandated by Florida Statute 718.303(3), in co-operatives in Florida Statute 719.303 and for homeowner’s associations in Florida Statute 720.305(2). Strict compliance with the fining procedures is required.

HEARING BY FINING COMMITTEE: Meetings 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 taken. The fining committee is appointed by the board.

NOTICE OF VIOLATION: Condominium, Co-operatives and Homeowner’s associations must be sure that the governing documents are enforced uniformly as to every member, director and resident, otherwise there could be a selective enforcement defense. Condominiums, Co-Operatives and Homeowner’s associations must be sure to have evidence to support each of the violations (letters to the owner, photographs, video, etc.).

If 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 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 uncollectable 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.

An association is given a privilege that only mortgagees and tax authorities have – the ability to foreclose on homestead property and / or the ability to foreclose on real property. All other creditors must pursue legal remedies that may lead to a judgment against the real property but not result in foreclosing on real property.

An association may not lien property in a condominium or co-operative association for the failure to pay a fine, although with specific language in the Declaration, a homeowner’s association may have such authority. Foreclosure is an equitable remedy. It is highly unlikely a Judge will permit the foreclosure of property for fines if the Homeowners Association had other remedies to enforce the governing documents that would allow the owner to keep his/her home. Judges and juries are also members of community associations and it has been our experience that they are averse to pursuing fines.

The 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.

For a condominium and co-operative associations, 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 or co-operative fining committee can only be comprised of unit owners who are neither board members nor persons residing in a board member’s household.

For 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 account ledger.

• In a condominium or co-operative association, a fine cannot exceed $100.00 per violation;

• A fine cannot be more than $1,000.00 in the aggregate;

• A fine cannot become a lien in a condominium or co-operative association;

• A fine is not added to the ledger or collected until upheld by the Fining Committee regardless of whether the owner attends the hearing.

• In the alternative, an association may suspend for a reasonable period of time the right of a member or the member’s tenant or guest to use the amenities for failure to comply with the Governing Documents.

• A suspension does not occur until it is upheld by the fining committee and the owner or tenant is advised as to the date such suspension commences and ends, usually not more than 90 days.

• If it is found by the Division of Condominiums that the Association failed to provide proper notice to a member of a hearing to uphold a fine, the Association may receive a penalty from the Division for up to $1000.

 

***

(8-14-19)

QUESTION

Is there a limit to the dollar amount of special assessments as a percentage of the regular maintenance/assessments of an association, say over a one-year time frame?

ANSWER

What you need to do is read your governing documents, before you buy in a community association and every time you are concerned as to whether the board has the authority to act – without your approval. If there is something the board can authorize – without your input – you need to be aware of that fact. A community association operates as a business and although you are an owner, you may not be able to weigh in on every decision. If the board had to get a community vote every time it was faced with a repair or a renovation – the association may not operate efficiently. There are provisions in the law regarding notices required to proceed with a special assessment as well as votes required for a material alteration if the governing documents are silent - - but there is nothing that trumps your governing documents regarding the frequency of a special assessment.

QUESTION:

Our Board were told by our Association attorney to:1. Throw out our Blue Book; 2. Use House Rules; 3. 718 takes precedent. Realizing that 718 is paramount and the Blue Book is a legal document even though several items have not been enforced for over 10 years, why should the bluebook be discarded. The Board is now trying to take out things from the bluebook and put them in House rules thus leaving residents without votes. Any input regarding the above would be appreciated.

ANSWER:

If the "blue book" you are referencing is your Declaration – there are ways to reestablish the provisions that have not been enforced. A Florida court decision stands for the proposition that Boards may correct this situation by providing written notice to all members informing them that on a certain future date, the association will begin enforcing the restriction once again. See Chattel Shipping & Inv., Inc. v. Brickell Place Condo. Ass'n., 481 So. 2d 29 (Fla. 3d DCA 1985) (court found that selective enforcement was not a valid defense when association notified membership it would not take action with respect to existing violation but would not permit any subsequent violation). Essentially, in providing the membership with a "Clean the Slate" letter, the association is placing its members on notice that notwithstanding any prior lack of enforcement, future violations will be enforced consistently and uniformly. An association should consult with legal counsel if it has concerns regarding previous enforcement of certain provisions of its governing documents and whether a "Chattel Shipping" may be necessary.

 

***

(7-31-19)

QUESTION

Our condo association has sent out proposed changes to AMEND AND RESTATE the DECLARATION OF CONDOMINIUM OWNERSHIP. Part of the wording for the changes is as follows:

"Amendments must be approved by at least two-thirds (2/3) of those owners who are eligible to vote and participate in the voting, in person or by proxy, at a membership meeting, provided that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid."

I think they have defined eligibility as those owners who are entitled to vote as long as they are not delinquent on condo fees or assessments. The question is, if we have owners who are behind on their condo payments and are delinquent and therefore are prohibited from voting, according to State Statutes should their votes be automatically counted as a no vote to the changes?

ANSWER

A unit owner that has had their voting rights suspended, pursuant to the governing documents and/or the law is an ineligible voter that is not counted at all. In fact, ineligible voters reduce the number of votes required because the ineligible voters are deducted from the total number of units before the percentage required for a quorum and affirmative votes to pass are determined.

This is a frequent question – and the answer is always the same. A non-vote is not counted as anything. It is merely a non-vote. In some instances, it may have the same effect as a no vote, because it cannot be counted towards the percentage needed to pass an amendment. Despite the fact that the effect of a non-vote may sometimes be similar to that of a no vote, there are times when counting a non-vote as a no will change the outcome. Therefore – a non-vote is never counted as anything.

In your question, you mention that your documents state the following "two-thirds (2/3) of those owners who are eligible to vote and participate in the voting, in person or by proxy, at a membership meeting, provided that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid."

This wording is complicated and it changes the way the outcome of the vote is determined. The first part of the process requires we determine how many unit owners must be present to establish a quorum. We can determine that by looking at the last part of the provision, first.

FIRST ESTABLISH QUORUM REQUIREMENT: "that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid" This last part of the sentence establishes the quorum required in order for the meeting to proceed. If we have thirty eligible voters sixteen must attend the meeting in person or by proxy for the meeting to proceed. If only sixteen people (a majority in attendance) are present at the meeting, eleven (two-thirds) of the sixteen present must vote yes in order for the matter to pass. If only ten people attend in person or by proxy, the meeting cannot be held because there is not a majority of the member ship present. If all thirty of the residents attend, twenty are required to vote yes for the matter to pass.

NEXT, DETERMINE IF PASSAGE REQUIRES A PERCENTAGE OF THE ENTIRE MEMBERSHIP OR JUST A PERCENTAGE OF THOSE IN ATTENDANCE.

Pursuant to the following in your governing documents, "and participate in the voting, in person or by proxy, at a membership meeting." the affirmative vote is not required of the entire membership – just those present in person or by proxy as long a quorum of a majority of the members attends the meeting in person or by proxy. If you omit the words "present in person or by proxy", two-thirds of the entire membership would have to vote yes to pass the amendments.

FINALLY, DETERMINE THE ACTUAL PERCENTAGE REQUIRED TO PASS WHICH IN YOUR CASE IS: "two-thirds (2/3) of those owners who are eligible to vote" – there are provisions in Florida law and many governing documents that can cause a unit owner to have his voting rights suspended, but the process to suspend the voting rights has to be followed. If the suspension has been properly implemented, the ineligible voters are deleted from the total number of units, thereby decreasing the number of votes required. For example, if six residents are delinquent and their voting rights have been suspended at a duly called meeting and they have received proper notice of the suspension, the total number of units eligible to vote drops to 24. Therefore, the required number of units present in person or by proxy, according to your governing documents requirements, is a majority of eligible voters – or thirteen. As you can see, determining a valid vote is complicated enough without attempting to count non-votes as anything.

 

***

(7-17-19)

QUESTION

I am the Secretary of a 119-unit condominium in Pompano Beach. About 10% of our owners rent their units. We want to know if we are required by law to have an ADA compliant lift to provide access to our swimming pool. If you are able to answer this question, could you point us to the part of the Florida statue that covers this situation?

ANSWER

If any residential entity strictly limits use of their facilities to residents and their guests, they would not be subject to ADA regulations. Although residential facilities are not required to comply with ADA regulations for swimming pools, they must comply with the Fair Housing Act.

Under this legislation, a privately-owned residential community must provide a barrier free pathway up to the edge of a pool.

In addition, they cannot prevent a resident from using their own apparatus to gain access to the pool, providing it does not provide a hazard for other residents.

In other words, if a resident has a portable pool lift and keeps it in storage when not in use, or if the resident wants to install a permanent pool lift - the facility cannot prevent that resident from installing and / or using the lift to gain access to the pool.

The Americans with Disabilities Act and the Fair Housing Act regulate who must comply with providing an accommodation for a person with a disability. Entities affected by the regulations generally fall under either Title II or Title III of the Act. Title II outlines regulations for any public entity. A public entity is any activity, service, program or facility owned by any governmental agency.

Title III regulates places of public accommodation, commercial facilities and private companies that offer courses and examinations related to educational and occupational certification.

The ADA does not affect any type of residential dwelling, such as a private residence, an apartment complex, a condominium or a homeowner's association.

However, if any of these residential facilities operates an element of public accommodation within their premises, these elements would be subject to ADA regulations.

Here are some examples of situations where a residential entity would fall under ADA regulations with respect to swimming pools:

• A private residential apartment complex sells memberships to their swimming facilities. This situation would be considered providing a public accommodation.

• A homeowner's association pool is used for swimming competitions that are open to competitors from outside the association. This situation would also be considered offering a public accommodation.

• A condominium (or an entity within the condominium) – not merely the unit owner - actively rents out its units when owners are absent, including advertising, taking reservations over the phone and providing either meals or housekeeping services. In this instance the condominium would be considered a hotel.

 

***

(7-3-19)

QUESTION

During a plumbing emergency involving two apartments the property manager working with one of the owners agreed that the owner should pay for the repairs to be reimbursed later. After the repairs were completed, it was found out the other owner had caused the problem by flushing down wipes. The manager submitted the invoices paid by the owner that had the damage to the Board of Directors and billed the other owner that caused the damage for the expenses. The Board responded that it was not their concern and that it could only reimburse the owner after they had collected from the owner at fault. I maintain it is the Association responsibility to reimburse the owner because the clog was in a common line servicing the two apartments and it was unknown at the time of the repairs who was at fault.

ANSWER

Managers should not act on behalf of the board of directors without the express permission of the Board. The Declaration of Condominium will control in this situation as it should contain language identifying the responsibilities of owners and the association. If the repairs were not emergency repairs the owner with the damage should have waited to complete the repairs until the issue was fully investigated. Our recommendation is that all parties report the damage to its respective insurer before attempting remediation.

QUESTION:

I am a long-time owner at a Broward County condo. 46 units. I have been on and off the board over the years. Currently I have rejoined the board with a two other new people to the board. Our secretary has been on the board for 8 years. With the convenience of email, it is easier to discuss issues that we will discuss at a meeting or update each other on the things are being done. The secretary has in the past and now, deliberately left me out of the loop. He has also lied about past incidents about me, exaggerated the truth and left out substantial facts. Two board members have said nothing and 1 have. He has done this to a past board member because he doesn't get along with the past member or me. And our management company doesn't always like to include all board members on emails. She doesn't like me because I will confront her on her lack of doing her job.

So, with that being said, can a board member deliberately leave other board members out of the loop? And is it legal for the property manager to do the same? They would both like to see me off the board. Which isn't going to happen.

Your input would be greatly appreciated.

ANSWER:

Board members should not conduct business via email, and it should be stopped. Board members are supposed to conduct business at a properly noticed meeting in front of the residents. It is unfortunate that the lines have become blurred and instead of merely advising board members via email that there will be a board meeting – the boards are discussing and planning and deciding issues via email when they should be merely advising the date and time of the next meeting. If there is an association attorney, perhaps you can appeal to the attorney to advise the board of the proper protocol for conducting business. If the manager is communicating with the board on these emails you may be able to ask the management company or the Department of Business and Professional Regulation to intervene. Other than that – unless or until there is an election and a new board is seated this may continue.

 

***

(6-19-19)

QUESTION

Our community has several committees, including Finance and Architectural Review. We never know when they meet and as far as I can see there are never any minutes taken. We should know what is going on. Is this right?

ANSWER

No, it is not right. Committees are not allowed to act in secret. Under Florida law, any committee which acts in place of the Board is required to keep a record of all its actions. Those records form part of the official records of the association and are available for inspection by all members of the association. In addition, in many instances, committee meetings are open to all members of the association and the members are entitled to be notified of the meetings in the same manner that they are notified of Board meetings. In the case of a homeowners’ association, this notice requirement applies to any committee which makes a final decision regarding the expenditure of association funds or any committee vested with the power to approve or disapprove architectural decisions regarding individual lots. In the case of a condominium association, this notice requirement applies to all committees. The meetings of a committee which does not take final action on behalf of the Board or make recommendations regarding the association are not open to all members, except if the association bylaws so state.

QUESTION:

Our compliance committee runs their group with an "Iron Fist." They give the offending owners unrealistic time tables in which to comply with their rulings and documents. Are there any laws that govern this activity? Some people cannot get their house painted in 2 weeks! Please help.

ANSWER:

Any committee which acts on behalf of the association must act reasonably. The real issue here is that the compliance committee does not have the authority to direct how to come into compliance – that is a function of the board. Once the resident fails to act as required by the board a fine may be imposed by the BOARD with a minimum of 14 days’ notice and an opportunity to appeal the fine before a committee of non-board members. The compliance committee may only uphold or waive the fine imposed by the board.

 

***

(6-5-19)

QUESTION

Hello - I live in a condo in Naples Florida. Many of the owners want to change from carpet to hard surface in the common areas. The problem is, we're finding it difficult to come to agreement on the specific replacement. We're considering scheduling a vote where we agree to switch to hard surface. Assuming that passes with 75%, we'd choose the exact replacement by simple majority (the sample hard surface product with the highest number of votes would be the one installed). Is that an acceptable approach or do we actually need to get 75% on the exact flooring that will be installed?

Thanks for the help

ANSWER

The real issue of the material alteration is that you're going from carpet to tile. Provided the owners vote on the material alteration and the approximate color scheme it would appear that you would have fulfilled your obligation. In an abundance of caution you should not proceed without getting a legal opinion from your general legal counsel. Board members who act without the advice of their general legal counsel in contracts and votes of the membership are bordering on breaching their fiduciary duty. We often are confronted with situations where boards proceeded with a renovation or a vote of the membership without our advice and they create more problems than the legal fees that they think that they may have saved.

QUESTION:

Hi, I hope you can help me with my question. I believe it is a tricky one but I also believe I am being personally singled out. Here it is:

Back in December, I purchased a 2005 Jeep Wrangler. I have seen these vehicles in our complex for as long as I have lived here (10 years) and another owner in here had one back in 2011 for I believe 3 years. Our Rules and Regulations state 'No CJ7 or similarly designed vehicles allowed', passenger vehicles only. Well, in our complex, 40% of the residents own an SUV. I believe the Jeep Wrangler to be an SUV. It is registered the same as my RAV4 SUV. I went to get my permanent sticker for the vehicle once I received my permanent plate so it was like 5 weeks after I bought it and the president refused to give it to me stating the vehicle was in violation of our laws. I was shocked because like I said, I've seen them here for over 10 years and I had been driving the Jeep for over 5 weeks now and never heard a thing. I spoke to the president who was in charge in 2011 when the other Jeep Wrangler was in here and he said he did allow it and that any successive board must also allow it or proxy the owners to put the old rule back in place. Previous boards have allowed Jeep Wranglers in here but they were all just visiting for a day or a week or two. My question is, is the previous president correct, once he changed the rule, all successive boards must also enforce that rule? If my Jeep Wrangler is in violation, isn't every other SUV in our complex in violation? Any insight you could provide, would be appreciated.

ANSWER:

Are SUVs allowed in your community without any issue? If so I believe a jeep wrangler is classified as an SUV. A quick check on Google reveals the following - JEEP WRANGLER IS THE 2019 MOTORTREND SUV OF THE YEAR. I would not recommend relying on Google and would suggest a call to the dealer to identify the classification of your vehicle.

The next issue is whether or not the restriction is contained in the actual declaration of covenants or if it is merely in a rule enacted by the board. There are nuances that have to be examined. If the restriction is in the declaration and your jeep is in fact one of the vehicles prohibited, then you may have a problem keeping your vehicle on the property unless you can prove that the board failed to enforce this restriction for more than five years. If the declaration has any restrictions regarding permitted vehicles, then the board cannot enact rules that modify those restrictions. If the declaration is silent as to whether or not there are prohibited vehicles but allows the board the authority to enact rules, they may be able to enact a rule regarding prohibiting specific vehicles. You may need to contact an attorney that specializes in representing homeowners to examine this further.

 

***

(5-22-19)

QUESTION

Thank you for your blog! I am an owner in a Co-op in Florida. Our bylaws state that you can only rent every two years. One owner wants to have permission to rent 2 years in a row and is offering to pay the 1000$ maximum infraction fine in advance as if that would clear the air and allow him to do so. Can he do that? The BOD refuses to do it since it would mean that anyone could bypass the rules and regulations by simply paying the fine. What can the BOD do to force this owner to abide by our rules and regulations? Could the provisions of Chapter 719(3)(a) of the Florida Statutes allow the BOD, on top of the $1000 fine, be used to forbid access to the delinquent owner/tenant to the common areas?

ANSWER

The board has a fiduciary duty to enforce the governing documents and it cannot merely collect a fine or suspend a unit owners’ ability to use the common elements in order to permit the owner to ignore the rental restrictions of a unit that the owner is required to follow. Regarding fines - 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.

In a condominium or co-operative association, a fine cannot exceed $100.00 per violation. A fine cannot be more than $1,000.00 in the aggregate. a fine cannot become a lien in a condominium or co-operative association. A fine is not added to the ledger or collected until upheld by the Fining Committee regardless of whether the owner attends the hearing.

In the alternative, an association may suspend for a reasonable period of time the right of a member or the member’s tenant or guest to use the amenities for failure to comply with the Governing Documents. A suspension does not occur until it is upheld by the fining committee and the owner or tenant is advised as to the date such suspension commences and ends, usually not more than 90 days. If it is found by the Division of Condominiums that the Association failed to provide proper notice to a member of a hearing to uphold a fine, the Association may receive a penalty from the Division for up to $1000.

A board can resort to fines but if the owner fails to comply the board should consult with its association attorney for advice as to how to proceed. While fines and suspensions may work to force compliance -the intent is to be corrective and if the violation is not corrected – more formal legal measures need to be explored.

QUESTION:

While painting condo, flaws were found in some areas of building, including the floors of 4 lanais. Engineer asked that certain areas be cut/chipped away to allow inspection. Concrete was removed from approx. 10" x 6’ of my lanai, along with cutting and removal of my lanai floor tiles. Concrete was reinstalled but management company says that I am responsible for the purchase and reinstallation of the floor tiles at my expense. Wondering if this is true. Thanks.

ANSWER:

Unless your governing documents provide otherwise, you are likely responsible for the replacement of the tile on your balcony. The Declaration will identify the maintenance responsibilities of the association and the maintenance responsibilities of the owners. If the Declaration requires replacement of the tile by the association OR if the Declaration provides for a payment for incidental damages to a unit owner when repairing the common or limited common elements the association may have some responsibility for the replacement of your tile.

 

***

(5-8-19)

QUESTION

Can a board member collect mileage payments for the use of her car when used for association business?

ANSWER

A board member is entitled to the reimbursement of reasonable expenses that are incurred in the performance of their duties. Before a reimbursement is made, the board should have a written policy as to what will be reimbursed. In addition, a specific accounting of expenses should be required before any reimbursement is made. Whether a board member is entitled to mileage reimbursement depends. For example, if there is a meeting that the board member has to attend on behalf of the association that could be a reasonable item to request mileage reimbursement. If the board does not have a written policy to allow for this, the board member should get board approval before attending the meeting if they are expecting reimbursement so that there is not any confusion as to what the board member should expect.

QUESTION:

Under 718.303, which governs Condominium Associations or under 720.305, which governs Homeowners Associations, does the board have right to cut off cable tv to an owner who is more than 90 days in arrears with his assessments?

ANSWER:

Good question. The first place the association needs to look for this answer is the bulk cable agreement. The contract between the association and the provider must have a provision that requires the provider to disconnect unit owners upon notification by the association that an owner is delinquent in payments to the association. Absent such a provision in the contract, the provider is not likely to disconnect the service. If the contract has such a provision, the provider will cooperate and the service can be disconnected. This question is often asked because the statutes that govern state that a utility cannot be disconnected. Cable tv is not a utility and unlike water, electric and gas for example, there are multiple providers available that can provide television programming on a retail basis to an individual.

 

***

(4-10-19)

QUESTION

Is it legal for a COA Board to dictate when an owner can and cannot access their home? I own a condo in a garden-style, two-story walk-up complex.

The COA Board approved a project to scrape, waterproof, and paint the surfaces of the stairways and entrances to all condos. The refinishing project will take 8 hours a day for 3 consecutive days for each of the 10+ buildings.

In doing so, the COA’s approach is to block off access to residents’ condos for 8 hours for three consecutive days for the work to be completed and have ample time to dry. So, the COA has instructed residents to either be holed up in their condos or leave their homes for 8 hours a day for three consecutive days.

An alternative approach was suggested to divide and cordon off the walkways and staircases so that half of each could be completed at a time. This would allow the project to be completed in two phases while enabling access to and from each condo. However, the COA President is adamant that the suggested approach is not feasible due to cost.

The COA’s approach causes many concerns the least of which is where does an elderly person with a dog go for eight hours a day for three consecutive days? Also, from a safety perspective, how would emergency personnel reach residents who are holed-up in their second-floor condo? Also, for guests visiting from out of town, how should they respond to spending their vacation either in a condo or not able to return to the condo for 8 hours a day for three consecutive days?

To me, the decision is a matter of common sense and basic compassion for others or does the COA have the final say.

ANSWER

The board has a fiduciary duty to maintain the common elements and the maintenance and repainting of the stairways and walkways is reasonable. As to who makes the decision? The board is more than likely empowered to make such a decision per your governing documents. In order to successfully manage the business of the association the board of directors is usually granted the responsibility of entering into contracts and seeing to it that the property is properly maintained.

A valid question would be if the governing documents contain a provision for incidental damages. In the event there is an incidental damage provision in your Declaration – it could make the association responsible to provide payment for housing for the three days if the residents are prevented from using the stairs. There are also Arbitration decisions that have supported the same -requiring that the association is responsible to pay for housing during the time access to the units is restricted.

Regarding your concern about emergency personal – I doubt that wet paint ever stopped a health, fire or safety rescue in an emergency. While it is unfortunate that the project will cause a disruption – perhaps the disruption can be minimized by scheduling the project at a time most convenient to the residents. Some residents may want to consider staying elsewhere during the planned project to minimize the inconvenience and the association may be responsible to contribute. One thing we should not lose sight of – you are the association – so if the association is responsible to provide housing elsewhere - the cost of such will be shared by the unit owners.

 

***

(3-27-19)

QUESTION

If an owner makes a modification/alteration to a limited common element, such as their balcony, do they automatically become responsible for the maintenance?

ANSWER

The first question I would ask - if it is a material alteration did the modification require a vote of the owners in addition to the approval of the board pursuant to the requirements of the governing documents? The approval process should identify who is responsible for future maintenance so there is not any confusion. It is customary for an owner to assume responsibility for the repair and maintenance of changes to a limited common element - such as adding tile to a balcony floor. If the association requires the removal of the tile to perform maintenance or repairs to the balcony, the unit owner is responsible to remove and replace the tile. Clearly documenting all responsibilities will help to prevent a dispute in the future.

QUESTION:

I have owned a Townhome since 1999 and have included my daughter on the title in 2015. Our HOA adopted a Leasing and Other Transfer Policy & Procedure on 3/28/2017. Would that mean any leasing or transfer prior to this date of 3/28/2017 would not apply? Your expedited response in this matter would be greatly appreciated.

ANSWER:

A board cannot merely adopt a Leasing or Other Transfer Policy without a vote of the owners. The only restrictions must be included in the Declaration as originally recorded or amended. If such restrictions are not included in the original Declaration - the owners must vote to amend the Declaration. If the amendment was done after your transfer occurred - the transfer to your daughter would be grandfathered - therefore the board cannot require you to comply. Please keep in mind that this answer is very general, and your specific situation requires that you review your governing documents and evaluate how they apply to your situation.

QUESTION:

Good Day Ms. Konyk

Thank you so much for your valuable advice for condominium residents. I found somewhat similar entries in your Ask the Lawyer questions / answers but not close enough to our specific issue. Our condo documents are for 32 units. Phase 1 (our 8-unit building) was developed in 1984. But no building has been built since Phase 1 in 1984. There are 3 more 8-unit buildings in our 32-unit Condo Docs. The developer sold the remaining parcels to a person who totally ignores us. We haven't had contact in several years. We act like we are an 8-unit condo building rather than the 1st phase of a 32-unit condo association. For example, we have association meetings that address JUST our 8 units and ignores everything else. The owner of the remaining 24 parcels has never been invited to our meetings. She now has her residual parcel listed with a local realtor advertising it as the remaining portion of a 32-unit complex

ANSWER:

Your question was edited as you are asking for legal advice which requires research of your governing documents and that is not the purpose of the column. The developer has not followed the law nor has the subsequent purchaser as provided by 718.403 - All phases of a phased condominium must be completed within 7 years or there must be an amendment to the declaration for an extension of the 7 years provided it is ratified by the owners pursuant to the requirements in the declaration and it is submitted for approval during the last 3 years of the 7 year period.

 

***

(3-13-19)

QUESTION

My mother owns a condominium. She has now decided that she wants to transfer the title to both my name and my sister's name. The condominium association is requiring that we go through the same screening process as a new buyer would. It wants application fees from each of us, processing fees, etc...

In addition, it is requiring that we submit pay stubs and other documents and each of us must be interviewed. This is just a transfer of title and no money is going to be exchanged. Can a condo association do this?

ANSWER

If the Association has the authority to screen unit owners and that authority is granted in the Declaration of Condominium without exclusions such as for transfers within a family, you will have to comply. Many times, a board thinks they can adopt a screening process via a board enacted rule. If the authority is not granted to the association by the Declaration, the board cannot require you to comply with the screening process. You need to make sure your mother has a complete set of the governing documents and you need to review them to see if the authority to screen prospective owners is granted by the Declaration. Furthermore, a condominium cannot charge any fee involving a transfer that is not authorized by the governing documents and all fees, including the charge for a background check or credit check cannot exceed $100.

QUESTION:

Our community has several committees, including Finance and ARC. We never know when they meet and as far as I can see there are never any minutes taken. We should know what is going on. Is this right?

ANSWER:

Under Florida law, any committee which acts in place of the Board is required to keep a record of all its actions. Those records form part of the official records of the association and are available for inspection by all members of the association. In addition, in many instances, committee meetings are open to all members of the association and the members are entitled to be notified of the meetings in the same manner that they are notified of Board meetings. In the case of a homeowners’ association, this notice requirement applies to any committee which makes a final decision regarding the expenditure of association funds or any committee vested with the power to approve or disapprove architectural decisions regarding individual lot and fining committee meetings. In the case of a condominium association, this notice requirement applies to all committees.

 

***

(2-27-19)

QUESTION

I have a question I have not seen addressed in your blog. It concerns condominium rental restrictions. Our 1985 Declarations originally included a paragraph granting the Board authority to approve leases and purchases, and to restrict rentals to minimum terms of 30 days.

The Developer recorded a subsequent amendment which removed that paragraph in its entirety. The effect is that today, our Declarations are completely silent regarding any rental restrictions, and applications and fees for purchase and leases. Can our Board now adopt Rules that would prevent daily rentals (AirBnB, etc.), and also state that the Board can approve applications and collect fees for leases for sales? Or do 75% of the members of the Association have to adopt an amendment to our Declarations stating these procedures? If the Board can adopt a Rule, do the existing owners have to opt in to be covered by it? One additional fact is that our City has an ordinance that defines dwelling units in our zoning district as "for rental, lease, or other occupancy on a weekly or longer basis." So, we were hoping that provision would give us some leverage in restricting daily rentals. Thank you!

ANSWER

The board may not adopt a rule as any restriction regarding the transfer of a unit must be contained in the Declaration. A vote of the owners is required. You are correct that any restriction on renting would not apply to a Unit owner that votes no or does not vote. Finally – the city ordinance would protect you somewhat – getting the city to enforce may be another hurdle you have to climb.

QUESTION:

We own a condo in Cape Canaveral. We have received the following notice from our Condo Board:

"At the last Board Meeting it was brought to the Board’s attention that some owners have noisy sliding glass doors. As a result of the comments received, an inspection was conducted to identify units with noisy sliding glass doors. That effort revealed that approximately 80% of the doors need to have the rollers replaced. Your unit was identified as one of the units with doors that need attention."

Is there anything in Florida condo law that stipulates the maximum decibel noise level for condo sliding glass doors?

Thank you for your help in providing this information.

ANSWER:

There is nothing in condo law regarding decibels noise levels for sliding glass doors that I am aware of – but there is probably an abundance of documentation in your condo governing documents regarding maintenance and nuisances. To replace the rollers in your sliding glass doors is routine maintenance which is more than likely required. Communal living is difficult and not for everyone - not sure why anyone would take issue with being a good neighbor and eliminating a disturbance to your neighbors. To quote Spike Lee "Do the Right Thing."

 

***

(2-13-19)

QUESTION

If condo owners are delinquent (30 days, 60 days, or on payments) in their HOA fees, are they still able to have a VOTE in person or by Proxy?

ANSWER

The suspension of use or voting rights must occur at a duly noticed Board meeting:

• A monetary obligation due the Association that is more than 90 days delinquent can result in a suspension of the use of the common elements - such notice of the suspension must be at a properly noticed Board meeting. This suspension of use of the common elements should be confirmed in the form of a motion and upon approval by the Board the association must notify the owner and if applicable the tenant by mail or hand delivery.

• A monetary obligation due the Association in excess of $1000 and more than 90 days delinquent can result in a suspension of the voting rights - such notice must be at a properly noticed Board meeting and upon approval by the Board the association must notify the owner by mail or hand delivery. Thirty days before such suspension of voting rights takes effect, the owner shall be provided proof of the monetary obligation.

QUESTION:

The association has determined an interior pipe inside my bathroom wall is leaking and needs to be repaired, causing a water problem in the condo unit below me. They will have to tear out my marble tile and mirrored wall to fix it. But they won't repair my wall back to its original condition. They said it's my problem. Can this true or are they just bullying me?

ANSWER:

I would say thank you to the Association as it appears it may have undertaken repair that is your responsibility. Unless the governing documents provide otherwise - a pipe serving only your unit is your responsibility pursuant to FL STAT 718.111 (11) (f) 3 regarding the association's responsibility for insuring: "The coverage 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 countertops, 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 any insurance thereupon is the responsibility of the unit owner."

 

***

(1-30-19)

QUESTION

I own and rent out a condo in a small building in southwest Florida. I purchased it four years ago and began renting it out immediately. At that time there was no information in the condo documents that conveyed with the purchase of the condo discussing required levels of credit ratings for any renters, nor was there any verbal request that I screen for renters with a certain score level.

Recently, I heard that the condo board/condo management company had begun screening all prospective renters for at least a credit rating level of 650. Because my renter has moved out and my leasing agent has begun searching for a new renter, I asked for a copy of the documentation establishing 650 as the minimum credit rating for my next renter from both the president of the condo board and our regular representative from the condo management company. No one will/can provide me with written information defining 650 as the minimum credit score for my next renter. Additionally, they are demanding that all adults living in the condo have at least a credit rating of 650, even if only one of them is renting/paying for the unit. Can they do this without amending the condo documents? Can they force me to comply even though it doesn't seem to be in our documents? I'm sensing that the credit rating score of 650 is not being required in a uniform manner for all condo owners who rent.

Thank you.

ANSWER

If your Declaration of Condominium contains the authority to approve or deny renters – the association has the right to screen your renters and it may have the right to establish board drafted criteria for such approvals. The association is required to consistently apply the criteria to all rentals. As to whether or not they can require a minimum credit score from renters - that is a hotly debated topic among lawyers and we are going to suggest you seek legal counsel to advise you regarding the associations ability to require such. You as a landlord certainly have the right to consistently apply criteria regarding credit scores and it would seem that you as a landlord would want to assure that your tenant is financially secure.

QUESTION:

I'm on the local board of what I'll refer to as Section A, which is made up of several hundred villas with painted concrete driveways. Without paint, the driveways would be ugly, with paint, they are very attractive. Here's where we have a disagreement with the Master Association. About 4-5 years ago, a major project was completed where all the driveways were torn up and rebuilt to the original specifications. The Master Association paid for the construction costs, but for reasons unknown to us, the local board agreed to pay for re-painting the driveways. We believe the master pressured the local board into that agreement, otherwise they would have refused to fund the construction project. Fast forward a few years and several concrete driveways are cracking again. The Master Association agreed to pay for the structural repairs, and they are in the process of being completed. However, the President of the Master Association is demanding that after each driveway repair is completed, our local Section A board must pay to repaint the damaged driveway. The president of the master association argues that because the local board agreed to paint them 4-5 years ago during the major reconstruction project, we must now pay for painting a 2nd time, after the cracks are repaired. We, the current local board, argue the documents clearly state the master association owns the driveways and is responsible for maintaining them. In this case, that means the Master Association is responsible for repainting the driveways after they are repaired. Although the local board agreed to pay for painting driveways several years ago, that did not change the fact that per our documents, it's still the responsibility of the master association.

ANSWER:

Without reviewing the governing documents I am unable to answer this and I do not provide legal advice for specific issues in this column. You need to defer to your general legal counsel for guidance. My only question – for which I do not expect an answer is – what is the difference which association writes the check – you still must budget for it and collect the money from the unit owners who own the driveways – in other words the Master can reserve for such or the Local Board can reserve for such - but ultimately it is the residents that are assessed – regardless of by whom – who will pay for the painting of the driveways.

 

***

(1-16-19)

QUESTION

I live in a Condo Association that include 11 associations (each with their own grounds, declarations, articles of incorporation, by-laws), with a non-profit corporation that was instituted to handle the recreational grounds. This Corporation has a Board of Directors in 2 parts- the Executive Board, and a Member Association Board that has 1 representative from each of the Condo Associations. The Executive Board consists of Directors elected by the Member Board. The condo fees for all of the 11 associations include a fee which is paid directly to the management corporation to cover the maintenance and improvements of these recreational facilities. The management corporation has been using some of the fees that all residents pay to make donations to certain groups, including local Police Department, Coast Guard, Fire Departments, Charitable groups, etc. They actually paid for renovations for a building to be used as a "clubhouse" for the local Policeman’s Union.

My question is this: Can this management corporation make these types of donations from the fees collected the residents of the associations without the approval of the residents of the 11 Associations?

 

ANSWER

First – a question – is the management association a voluntary membership association or are all 11 condominiums required to be members? If membership is mandated through the management associations’ governing documents and the governing documents of the 11 condominiums, the management association is a condominium association subject to the provisions of Chapters 718 and 617 of the Florida Statutes. If it is a voluntary membership association it is not subject to the provisions of Chapter 718 (the condominium act) nor is it governed by to the Division of Florida Condominiums, Timeshares and Mobile Homes ("Division"). Regardless – a corporation must have articles of incorporation and bylaws that identify its purpose and should identify what it is authorized to collect assessments for and what purpose it is permitted to spend the funds it assesses its members. If the corporation is a condominium it will also have a declaration of condominium. If the governing documents of the association do not permit the collection of funds for charitable purposes or the funding of other organizations– it is likely not authorized to make such donations. If the management association is subject to the provisions of 718, a resident could utilize the remedies offered by the Division by filing for non-binding arbitration or merely making a complaint to the Division to ask it to determine if in fact the association’s spending its assessed funds in accordance with its governing documents. If the management association is not a condominium, the choices are limited to litigation. Perhaps a more efficient remedy would be to seek like-minded people to serve on the board of the management association so that its funds could be managed consistently with its governing documents.

 

***

(1-2-19)

QUESTION

The association has determined an interior pipe inside my bathroom wall is leaking and needs to be repaired, causing a water problem in the condo unit below me. They will have to tear out my marble tile and mirrored wall to fix it. But they won’t repair my wall back to its original condition.

ANSWER

The unit owner is responsible for wall coverings and personal property if damaged by an insurable event with the association being responsible to repair the drywall. Given that the pipe is servicing your unit only – you may be responsible for the damage to the personal property of the unit below yours if it is found that the damage was caused by negligence. Chapter 718 provides that A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family, unit occupants, tenants, guests, or invitees, without compromise of the subrogation rights of the insurer.

Pursuant to Florida Statute 718 - Every property insurance policy issued or renewed on or after January 1, 2009, for the purpose of protecting the condominium 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 countertops, 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 any insurance thereupon is the responsibility of the unit owner. Unit owners are responsible for the cost of reconstruction of any portions of the condominium property for which the unit owner is required to carry property insurance.

The condominium is responsible to repair the drywall if damaged.

QUESTION

A board member of the condo association recently told me that a fee should be assessed for board members who perform bimonthly checks on a condo in the absence of owners. We’ve owned the condo since the late 1980s. Is there a statute or other reference that I can refer to resolve this?

ANSWER

A condominium may assess a member for a common or special assessment provided it is authorized by the governing documents. It seems unusual that a board would find it necessary to inspect unoccupied units bimonthly unless there is something specific in a particular building to warrant such. While many owners may find this a benefit and would be willing to pay a neighbor or a friend to perform such a task – there are others who would not want their unit unlocked and inspected without their permission – except in the case of an emergency such as a water leak. As to compensation for board members, 718.112 (2) (a) 1 provides in pertinent past that "Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration. Unless otherwise provided in the bylaws, the members of the board shall serve without compensation." Therefore, it would be unlikely that such a demand for compensation for a service you neither requested or was required would be found to be appropriate or permissible under Chapter 718 of the Florida Statutes.

 

***

(12-19-18)

QUESTION

Is it legal for condo owners to broadcast emails to all other owners without their permission to receive those emails?

ANSWER

While a unit owner who abuses such information cannot be controlled, the receiver of the unwanted emails has options. If a unit owner has your email and you do not want to receive emails from the person, you can either ask them to stop or you can block their emails. Email addresses are not part of the official records of the association, unless an owner has requested to receive notices from the association, therefore the unit owners email addresses should not be published without permission.

QUESTION

Thank you in advance for this valuable service you provide. I am on the BOD for a Condominium Association in Central Florida. Ours was a condo conversion. In our Declarations, the Developer included language which states that the Developer has the right to use the Common Areas for their use as Sales or Leasing activities, construction, until the Developer has sold every unit. The Developer still owns one unit (out of over 400 in our community) and to the best we can tell, has made no attempt to sell this unit in at least 5 years. It is currently tenant occupied.

Can the Developer basically have use of our Common Areas in perpetuity? We have office space in our Clubhouse that we would like to use but are handcuffed by this language. It just does not seem possible that the intent of the Act would be to allow this type of activity to go on. Do we have any recourse?

Thank you.

ANSWER

It would seem that once turnover occurred the Developers rights would have extinguished. Is the Developer still in fact using the office space? It seems like that would be an abuse of the intent of the Declaration – but the best advice I can offer is to seek legal advice of an attorney in your area that is well versed in condominium law.

 

***

(12-5-18)

QUESTION

My building was designed and constructed in 1982. Original papers filed by the builder show a total 126 designed unit spaces, of which (4) different floors were designed to have an ability to combine two adjoining spaces to be further developed by the buyer as they wished. Ultimately, this concept was executed thus resulting in 122 entrances to the living spaces. Builder did NOT amend original filings, may be overlooked or by intention – I do not know. As per these documents, when cable wiring was designed and installed in 1982, ONLY 122 outlets were installed. Starting 1990, as cable services replaced the rooftop antenna, existing wiring was used WITHOUT addition of outlets. My question related to #1 is, how many units do we have in this building as BOD negotiates a new cable service contracts and / or share common element expenses?

ANSWER

While there are 126 units sharing in the common expenses, there are 122 units for purposes of negotiating a cable contract even though the share of common expenses is divided by 126. Combined units should not be charged twice for communication services.

QUESTION

I have a question related to smoking in condominiums in FL. We have a renter who moved next door to an owner; with adjoining lanais. The owner occasionally smokes on the lanai. The renter is asking the board to have the complex change to smoke free. The HOA rules presently state there is no smoking on the property except in units/lanais if owner agrees. The renter is also speaking to other owners and lobbying them to help in pursuit of this. It has become an uncomfortable situation and although the renters 6 month lease is now up, the renters wish to renew and remain where they are. The owner has attempted to limit smoking by using a vaping device, has moved the sliding glass doors to the renters side, and has a fan that is always on the high setting to help disperse the smoke. The renter told the owner, "whatever you're trying to do is not enough" and "as you know, something has to be done". No one wants to take sides but we would like to come to a reasonable conclusion. The owners have been owners for a few years and there has never been a complaint from anyone prior to the renters of 6 months. If you can assist and refer us to an appropriate resource, it would be appreciated. Thank you.

ANSWER

An amendment to the Declaration of Condominium is required in order to make a building and the surrounding property non-smoking. Such an amendment can be proposed by the board or the owners but a renter does not have any standing to implement such a restriction. If such an amendment is proposed the vote of the members would be required to ratify. Second hand smoke is annoying. There may not be any way to resolve the renters issues although the renter does have the option of moving upon expiration of the lease. People have health issues that may make them even more sensitive to second hand smoke then the average person. If the owner is unwilling or unable to resolve the issue with the smoke emanating into the other unit the renter may have no option but to move.

 

***

(11-21-18)

QUESTION

Our previous management company will not turn over the ledgers. We even sent attorney letters. We have proper minutes stating their dismissal and sent two certified board signed letters 90 days in advance; yet still won’t hand over ledger. Everything else sent in shambles.  He says he is renewing our contract. Attorney bills growing. What is next step?

ANSWER

The next step would be to make a formal complaint to the Department of Business and Professional Regulation. The complaint can be filed online at

https://www.myfloridalicense.com/datamart/complaintDBPR.do?applicationId=1

QUESTION

Hello and thank you for all of the helpful information you provide on your website. I am sure you are getting many questions about elections right now, and I would like to get clarification from you on a situation in our condominium community of 96 units. We just received the notice of the annual meetings as they relate to the budget and election of officers. Included in the packet was a ballot for election of directors that listed eleven names of candidates. Of the eleven names, there appear to be ineligible candidates. Four of the candidates are two pairs of husband and wife. They own only one unit in our community. Florida Statute 718 clearly states this is not allowed except for certain circumstances. Our governing documents also indicate this is not allowed and specifically states a member or spouse may serve. It does not specify that both can serve. In my opinion, the CAM should have notified them that two people from one unit cannot apply to be a candidate. Isn’t the ballot now considered invalid, and therefore should be rescinded, and procedures implemented to send an amended second notice and proper ballots to unit owners? This is a contentious election, and some of these people are close friends with the CAM. I believe they are all in violation of Florida law, the Rules set forth by the Department of Business and Professional Regulation - Division of Condominiums, Timeshares, and Mobile Homes. Rule 61B-23.0021(9)(b) refers to ballots with ineligibles persons. And isn’t the Management company and its’ employees violating all of the above by allowing ineligible persons to submit their name to be a candidate? What recourse do unit owners have so that an invalid election does not occur? Any help you can provide would be greatly appreciated.

ANSWER

Unless the governing documents provide otherwise or there are more open seats on the board than there are candidates, co-owners are not permitted to serve on the board at the same time. Although 61B-23.0021(9) addresses the issue of including all eligible candidates, it does not specifically mention ineligible candidates. More than likely in an election dispute the inclusion of ineligible candidates would be resolved in the same manner as the failure to list an eligible candidate. Pursuant to the administrative code - The written ballot shall indicate in alphabetical order by surname, each and every unit owner or other eligible person who desires to be a candidate for the board of administration and who gave written notice to the association not less than 40 days before a scheduled election, unless such person has, prior to the mailing of the ballot, withdrawn his candidacy in writing. The failure of the written ballot to indicate the name of each eligible person shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, then the association must re-notice and reschedule the election. If the election has already been held, under these circumstances the association shall conduct a new election.

 

***

(11-7-18)

QUESTION

Thank you very much for answering my question! I own a condo unit in New Smyrna Beach FL. I am currently renting out my unit. Is there any restriction to me leaving my car in the condo parking lot or using the community pool while I am renting? The parking spaces are not assigned and there has never been an overflow problem with too many cars and not enough spaces.

I received a call today (Wed.) from our property manager who said the board was giving me until this Friday (3 days) to move the car or they would have it towed, at my expense.

Thank you in advance for your help!

ANSWER

Yes, there are restrictions in the law preventing you from continuing to use the amenities when your unit is rented.- Pursuant to Fl STAT 718.106 (4) When a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners and the unit owner shall not have such rights except as a guest, unless such rights are waived in writing by the tenant. Nothing in this subsection shall interfere with the access rights of the unit owner as a landlord pursuant to chapter 83. The association shall have the right to adopt rules to prohibit dual usage by a unit owner and a tenant of association property and common elements otherwise readily available for use generally by unit owners. The parking and amenities are in place to accommodate the number of residents occupying the units -if every landlord continued to park in the community or use the pool there would not be sufficient parking for all of the cars and the pool could become overcrowded.

QUESTION

I manage a condo in Florida and I have an owner that installed a doorbell camera on the exterior door. The condo is a high-rise building and the camera faces the hallway.

Can you direct me where I can locate any law dispute OR anything that says NO that can't be done?

ANSWER

In reading the section of the governing document you provided this installation would be classified as a material alteration requiring a vote of the owners to approve. The section of the law that applies is 718.1132(2) )(a) which provides in pertinent part is as follows:

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

 

***

(10-24-18)

QUESTION

I live in a 125 unit condo association and would like to know if a private homeowner or a group of homeowners can hire a CPA and request a full audit to be paid by private funds. Can the board say this is not allowed or is it something that can be done. Some of us have questions regarding invoices paid during Hurricane Irma. I have been told this is not allowed and some others are saying it can take place. Please advise.

ANSWER

An association member and his or her authorized representative are permitted access to review the official records of the association. The paid invoices from Hurricane Irma are official records. If after your review of the invoices you feel there is a discrepancy you should ask the board for clarification. Since the records are open to inspection by a members authorized representative, that would include a review by a CPA if the member so chooses.

QUESTION

We live in a condo building right on the river. There is currently no fencing preventing someone falling off the bulkhead. The condo board is considering installing fencing along the bulkhead. This would seriously impede our view and therefore, in my opinion, lower our property values. Our building was built in the early 90's and has never had any type of fencing. Can the board do this?

ANSWER

If the change rises to the level of a material alteration, either under the provisions of the governing documents or the law, a unit owner vote may be required to install a fence in the common area of the association. If the governing documents are silent the law requires the affirmative vote of 75% of the total voting interests to approve the material alteration to the common elements. [718.113 (2) (a)].

QUESTION

I understand that the Division of Florida Condominiums, Timeshares, and Mobile Homes has issued a revised Declaratory Statement indicating that term limits are retroactive, reversing their prior opinion. My condo has an election scheduled for November. In your opinion, who is eligible for election and who is not eligible or eligible only under certain circumstances.

ANSWER

First and foremost – a declaratory statement issued by the Division of Florida Condominiums, Timeshares, and Mobile Homes applies only to the condominium that requested the Declaratory Statement. Regardless of whether or not the Declaratory Statement applies to any other condominium election, which it clearly does not, the law as recently amended does not prevent any member from running for the board or from serving if there are fewer eligible candidates running then there are open seats or if elected by 2/3rds of those voting. The Declaratory Statement you reference has been hotly debated by the legal community that represents condominiums and the consensus is that the Division is not correct in its interpretation that the law is to be applied retroactively. In Florida, all laws are presumed to apply prospectively, unless they are remedial in nature, or designed to clarify law already in effect, and the legislature clearly expresses its intention that the law is to apply retroactively. This is the whole purpose of the effective date, because it provides adequate notice to the public of when an act is required to be performed. In the case of the newly added language regarding director term limits, the legislature did not clearly express in the statute its intention for the new term limit to apply retroactively.

 

***

(10-10-18)

QUESTION

Hello and thank you for allowing me to ask my question.

Regarding Article 718.113 and how it relates to what our condo docs have been amended to state that our board can make material alterations that are under $10,000 without an owner vote. I have called the state of Florida, and was told that the law always over rules condo docs. But, reading online it seems to me, that if our docs say they can do that, and those docs were approved by owner votes (which they were)—then if the board chooses to make an alteration—then they can do as they please under $10,000 per fiscal year. Your thoughts on if they can indeed do this, and that if taken to arbitration, would they win?

ANSWER

Hopefully the person you spoke to at the "state of Florida" was not an attorney because if the answer was what you stated – it was wrong. The law trumps the governing documents when it specifically states that it does. If the law says "except" or "unless" you need to carefully read and understand what causes there to be an exception to the law. Terms such as "unless the bylaws provide otherwise" or "except as provided by the declaration" mean that the governing documents control the issue. In the example in your inquiry, 718.113 (2) (a) actually states as follows:

(2)(a) 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. (emphasis added)

Therefore, if the project is less than $10,000 in total, it appears by what you have shared that the board can proceed without a vote of the owners. For example if the project involves refurbishing the lobby – the $10,000 threshold involves every aspect of the refurbishment that rises to the level of a material alteration – it does not give the board the authority to spend $10,000 replacing tile with carpet and $10,000 replacing paint with wallpaper. Keep in mind that there may be other provisions in the governing documents that may or may not limit spending when the board votes to replace like for like. Painting the same color is not a material alteration or replacing tile with similar tile is not a material alteration, but it may exceed the amount the board is authorized to spend without owner approval.

The law is complex in that there are several different provisions of the law that may apply in conjunction with evaluating the provisions of the governing documents. It is not a task that should be undertaken by volunteers. There are consequences for boards acting without seeking competent legal counsel. If your board is relying on advice of counsel – it is more than likely operating within the parameters of the law.

We cannot respond in regards to your inquiry as to who would win in a lawsuit if the board’s decision is sought to be overturned, without having all of the facts coupled with the ability to predict the future. What we can add is that a community association should be operated as a business. Operating as a business requires permitting the elected board to proceed with conducting the business of the association without requiring that the membership be involved in every decision. In our practice we spend countless hours advising and assisting board members to know when only a board vote is required and when a vote of the membership is required. There are decisions that may be made by the elected board. There are decisions that require a membership vote.

When living in a community association we are not in charge of our destiny at all times – others may be able to make decisions on our behalf. Living in a community association requires compromise and the understanding that the elected board may be authorized to make decisions we may not have made if we had been consulted. Being on the board is not easy – being subject to living with the decisions made by others is not easy either. The reality is – if you live in a community association governed by an elected board of directors - you may be required to accept decisions you may not agree with if the membership approves something you voted against or if the board has the sole authority to make such a decision. At the end of the day – treating each other with respect goes a long way.

 

***

(9-26-18)

QUESTION

Greetings! And thank you for your column, I keep Ask the Lawyer as a handy "starting point" in my browser's Favorites. We have heard about recommendations to amend our condo docs to align with FS718. Apparently, there may be a simplistic way of making one sweeping amendment such to the effect of, "this (1973) document is now superseded by the current version of FS718. Except for this Association's ratified 'Rules & Regulations', all Association matters shall be guided by FS718." That's my overall understanding of an Association's goal in amending its documents. Is this possible? Is it a popular thing that condos are doing to streamline their operation? What is your opinion? Thank you!

ANSWER

Your association attorney is the best source for advice regarding amending your governing documents. We would not recommend making a statement that the entire document is amended to be pursuant to FL STAT 718 as may be amended from time to time, because there may be provisions that you do not want to be fluid with the law. The most important sections that you would want to have conform to the law as it is amended would be those that address the collection of delinquent assessments. Very often the governing documents are written to support the position of a bank that may foreclose and you want to correct that so you can maximize the collection of delinquent assessments.

QUESTION

Can a Unit Owner claim ownership of common area parking space that is part of Common Elements of 4 Buildings?

ANSWER

An owner can claim exclusive use of a Limited Common Element without Association approval but cannot claim exclusive use of a Common Element unless the Board has the right to assign exclusive use to an owner. A Common Element parking spot can be assigned to an owner for his or her exclusive use – but the parking spot is not appurtenant to the Unit and it can be reassigned by the Association.

***

(9-12-18)

QUESTION

We 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 modifications.

We 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 counsel?

ANSWER

No 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 a transaction."

QUESTION

I 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.

ANSWER

Interesting 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.

 

***

(8-29-18)

QUESTION

Thank 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.

ANSWER

In 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.

One 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 dollars.

QUESTION

Our 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?

ANSWER

If 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 unit.

That 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.

Do 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.

 

***

(8-15-18)

QUESTION

Does 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?

ANSWER

Florida 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.

QUESTION

The 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.

We 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 original design.

We 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?

Thanking you in advance for an answer.

ANSWER

The 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.

 

***

(8-1-18)

QUESTION

We 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?

ANSWER

When 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 association.

QUESTION

I 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?

ANSWER

You 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.

 

***

(7-18-18)

QUESTION

Please provide the proper procedures for handling fines in a condominium.

ANSWER

It 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.

NOTICE OF VIOLATION:

Condominiums must be sure to have evidence to support each of the violations (letters to the owner, photographs, video, etc.).

If 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.

A 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.

An association may not lien property in a condominium association for the failure to pay a fine.

HEARING BY FINING COMMITTEE:

Meetings 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 taken.

The 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.

BOARD MEETING TO IMPOSE

If 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.

CONDOMINIUM ASSOCIATION REQUIREMENTS FOR COMMITTEE AND FINES:

For 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.

For 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 account ledger.

• In a condominium association, a fine cannot exceed $100.00 per violation;

• 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 the hearing.

 

***

(7-4-18)

QUESTION

I 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.  

Should we be paying for that pipe?

ANSWER

In 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. Stats.)

In 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:

Paragraph (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.

However, 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."

Paragraph (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 expense."

Some 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.

Pursuant 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?

It 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.

For 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.

As 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.

 

***

(6-20-18)

QUESTION

In Florida can a condo Board legally contract for bulk internet service to each unit, which is in turn billed to the owners?

ANSWER

Yes, 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.

QUESTION

Can 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.

ANSWER

The 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.

 

***

(6-6-18)

QUESTION

We 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.

718 seems to support that the parking space cannot be sold separate from the unit.

Is this correct?

ANSWER

Yes, 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.

Pursuant 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 parking space.

There 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 possible.

 

***

(5-23-18)

QUESTION

Can 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.

ANSWER

If 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.

QUESTION

What 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?

ANSWER

If 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 marked disregard.

QUESTION

Hello 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. Thanks again.

ANSWER

If 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 person.

QUESTION

With 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, 2018?

ANSWER

The 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.

 

***

(5-9-18)

QUESTION

We 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?

ANSWER

Without 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 provision.

While 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.

QUESTION

I 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 this?

ANSWER

No. 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.

 

***

(4-25-18)

QUESTION

Does each apartment in a condominium have 1 vote, regardless of the square footage of the apartment?

Thank you.

ANSWER

The 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 amendments.

QUESTION

Can a condo association cancel bulk cable contracts thereby allowing the residents to use the cable/satellite company that best fills their needs?

ANSWER

If 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.

QUESTION

Hello 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. Thanks again

ANSWER

The 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.

 

***

(4-11-18)

QUESTION

I 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 required this?

ANSWER

There is no requirement that the Board of Directors read into the minutes of its board meetings correspondence it receives from its members.

Perhaps 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.

We 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 meeting.

QUESTION

At 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?

ANSWER

A sign in sheet is not required nor prohibited unless your governing documents require otherwise.

QUESTION

First 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

ANSWER

The 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.

The 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 present.

 

***

(3-28-18)

QUESTION

Good afternoon,

Ref 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.

ANSWER

The reason you reference for the closed meeting was not for a personal matter it is for a personnel matter. Definition of personnel:

1. a body of persons usually employed (as in a factory or organization)

2: a division of an organization concerned with personnel

If 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 public.

QUESTION

Searching 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.

ANSWER

Individual 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.

Addressing 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 or motions.

Debate 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.

Respecting 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.

Debate 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.

 

***

(3-14-28)

QUESTION

The 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.

ANSWER

The 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.

Please 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.

QUESTION

Our 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?

ANSWER

If 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.

A 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.

 

***

(2-28-18)

QUESTION

Can assessment fees be placed on a condo AFTER the owner's death?

ANSWER

Each 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 assessments.

QUESTION

My 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 same position.

ANSWER

If 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.

QUESTION

We 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.

ANSWER

There 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.

 

***

(2-14-18)

QUESTION

In 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.

Does 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?

Thank you for your help and consideration.

ANSWER

The 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.

QUESTION

I 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?

ANSWER

I 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.

 

***

(1-31-18)

QUESTION

Hello 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?

ANSWER

No, 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.

QUESTION

My 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 made?

ANSWER

If 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 unit.

QUESTION

Thank 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 problematic?

In 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 her candidacy.

Thanks again for any advice you could provide.

ANSWER

There 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 regarding eligibility.

 

***

(1-17-18)

QUESTION

Hope 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.

Q1)How do we FAIRLY and with the wishes of the homeowners in mind decide who becomes president if the ballots are not counted?

Q2)Is 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.

Thank you for your much needed online services.

ANSWER

The 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.

***

(1-3-18)

QUESTION

Our 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.

ANSWER

Florida 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 imposed.

QUESTION

My 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 all.

ANSWER

You 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.

 

***

(12-20-17)

QUESTION

I 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 for civilians.

1. 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?

2. 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?

If 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?

ANSWER

There 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.

In 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.

 

***

(12-6-17)

QUESTION

Can 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 owners?

ANSWER

A 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 corporation.

QUESTION

I 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.

Was 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?

ANSWER

There 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.

 

***

(11-22-17)

QUESTION

Hello 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 homeowner.

ANSWER

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.

QUESTION

We 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!

ANSWER

In 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.

If 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.

QUESTION

I 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 legal?

ANSWER

It 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.

 

***

(11-8-17)

QUESTION

We 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.

What recourse do we have?

ANSWER

A 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!

One 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.

There 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 reaction.

The 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.

If 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.

Very 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.

That 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.

 

***

(10-25-17)

QUESTION

Thank 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.

My questions are regarding Board elections and terms:

1) 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?

ANSWER

Thank 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 provision.

QUESTION

Your 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 Board?

ANSWER

Unless 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.

 

***

(10-11-17)

QUESTION

We 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?

ANSWER

A 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.

While 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.

Unless 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.

QUESTION

Our 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.

ANSWER

The 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.

Additionally, 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.

 

***

(9-27-17)

QUESTION

I 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.

ANSWER

Unless 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.

QUESTION

I 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?

ANSWER

In 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.

 

***

(8--30-17)

QUESTION

My 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.

ANSWER

An 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.

QUESTION

Our 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.

ANSWER

Woodside 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 its provisions.

The owners who voted in favor of the amendment or who purchase after the amendment was passed are subject to its limitations.

QUESTION

If 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.

ANSWER

Boards 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.

***

(8-16-17)

QUESTION

We 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 shutters?

ANSWER

Your 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.

QUESTION

We 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 purchase contract!

ANSWER

In 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.

***

(8-2-17)

QUESTION

Can 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.

ANSWER

All 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.—

(a) 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.

The 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.

QUESTION

Ms. 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.

ANSWER

The 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.

 

***

(7-19-17)

QUESTION

We 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.

ANSWER

An 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.

We 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.

Given 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.

QUESTION

Recently buyers in our condo have been denied financing even with 50% down because the clubhouse and pool were never deeded over to the COA.

What was the logic behind leaving the principal common elements with the developer in 1973?

I would think this suppresses values depending on cash buyers.

Thanks. Love your weekly column.

ANSWER

Thanks 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.

 

***

(7-5-17)

QUESTION

I 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.

This 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?

ANSWER

I 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.

The 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.

QUESTION

Our 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 proper procedure.

ANSWER

You 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.

***

(6-21-17)

QUESTION

Our condominium vice president never comes to meetings; Can the board replace him?

ANSWER

Most 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 membership.

QUESTION

Our 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.

ANSWER

The 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.

Additionally, 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.

 

***

(6-7-17)

QUESTION

I 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.

ANSWER

The 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.

QUESTION

Our 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?

ANSWER

In 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.

***

(5-24-17)

QUESTION

The 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?

ANSWER

Usually 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 default.

QUESTION

Can 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.

ANSWER

A 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.

QUESTION

Ms. Konyk, I love your Ask The Lawyer site. Thank you for providing such clear and understandable information relating to condos. My questions are:

1. 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.

2. 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?

3. 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 your help.

ANSWER

Thanks 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.

 

***

(5-10-17)

QUESTION

Preceding 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 seven.

ANSWER

A 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.

QUESTION

Our 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.

ANSWER

An 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.

***

(4-26-17

QUESTION

We 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.

ANSWER

Your 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.

Associations 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.

The 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.

In 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.

 

***

(4-12-17)

 

QUESTION

About 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 without approval.

 

ANSWER

This 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.

 

QUESTION

Our 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!

 

ANSWER

I 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.

 

***

(3-29-17)

QUESTION

As 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?

ANSWER

I 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.

QUESTION

Hello 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? Thank you

ANSWER

A 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.

QUESTION

Our 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

ANSWER

It 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 Florida Law.

 

***

(3-15-17)

QUESTION

We 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?

ANSWER

The 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.

QUESTION

The 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 contract.

ANSWER

If 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.

QUESTION

My 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?

ANSWER

It 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.

***

(3-1-17)

QUESTION

Last 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??

ANSWER

Sometimes 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 replacement.

QUESTION

Our 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 various venders.

ANSWER

The association has a board of directors that is charged with a fiduciary duty to the membership.

In 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 presented by:

(a) One or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented;

(b) Legal counsel, public accountants, or other persons as to matters the director reasonably believes are within the persons’ professional or expert competence; or

(c) A committee of the board of directors of which he or she is not a member if the director reasonably believes the committee merits confidence.

(3) 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.

We 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 vendor.

We would further advise the association never to enter into any contract without a review by its general counsel.

We 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.

When in doubt – ask your general counsel for advice.

 

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(2-15-17)

QUESTION

Our 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?

ANSWER

Condominium 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.

QUESTION

My 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.

ANSWER

Matters 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."

 

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(2-1-17)

QUESTION

Our association annual meeting and board election is February 7, 2017.

There are five candidates for three seats on the board. Three candidates are incumbents.

When we received the second notice with the ballot, I noticed that the ballot states "You must vote for three".

I 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.

What would be the proper notification and procedure to correct the error on the ballot?

Thanks, in advance! I am interested to see how this all works out!!

ANSWER

We 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.

QUESTION

A 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.

I know that is unlawful, and have advised such, but what is my next step legally?

ANSWER

The 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. 

1. Mail your complaint to:

Department of Business and Professional Regulation
Division of Florida Condominiums, Timeshares, and Mobile Homes 

2601 Blair Stone Road, Tallahassee, Florida 32399-1030

2. Or, e-mail your complaint to the Customer Contact Center at http://www.myfloridalicense.com/contactus/

3. Or, fax your complaint to 850.921.5446.

Within 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.

 

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(1-18-17)

QUESTION

Recently 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 windows?

ANSWER

The 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 interests.

The 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.

1.) 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.

 

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(1-4-17)

QUESTION

The 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.

ANSWER

The 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.

Any 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.

If 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.

Another 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.

 

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NOTE:  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.

Simplified Procedures Allowed by

Robert’s Rules for Board Meetings

In 1863, Henry Robert, an engineering officer in the United States Army, was asked to preside over a large meeting. Captain Robert did not know how to preside, but trusting that the assembly would behave itself, he plunged right in. With that plunge came the quick determination that he would never preside over another meeting until he knew more about parliamentary law. After researching the voluminous and conflicting procedures used by the English Parliament and the United States Congress, he began drafting what is considered to be the definitive manual on parliamentary procedure, Robert’s Rules of Order. Over the last 100 years numerous editions of Robert’s Rules of Order have been published.

The application of Robert’s Rules can make a large meeting run briskly and smoothly.

However, in some circumstances, the formality of Robert’s Rules can actually hinder business. One such situation relevant to community associations is the application of Robert’s Rules at board meetings.

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 about a dozen board members present, some of the formality that is necessary in a large assembly can be relaxed.

The rules governing such meetings are different in the following respects:

1. Members are not required to obtain the floor before making motions or speaking, which they can do while seated.

2. The president can make motions and vote on all matters.

3. The president can speak on any matter before the board.

4. No motion needs to be seconded.

5. There can be informal discussion of a subject without a motion being made.

6. If a proposal is perfectly clear, a vote can be taken without any motion having been introduced.

7. After a general discussion has been held without a motion, action can be agreed upon by unanimous consent without taking a vote at all.

A 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.

Other matters, however, can be handled without making a formal motion. For example, where the board has thoroughly discussed three bids for landscaping without a motion, and where it was obvious that one bid is much better than the others, the president can bring the matter to a simple conclusion by stating:

"If there is no further discussion and no objection, let the minutes reflect that the board voted unanimously to approve the proposal from ABC Landscaping Company and the president is authorized to execute the proposed contract after it is reviewed by the association’s attorney."

The key to the above scenario is that the matter is unanimous. If it were not unanimous, the president could state as follows:

"If there is no further discussion, I move that we accept the proposal of ABC Landscaping Company and that the president is authorized to execute the proposed contract after it is reviewed by the association’s attorney. All in favor, say "aye". All opposed? (The minutes then reflect the actual vote.)"

If desired, the board can revert to any of the more detailed requirements of Robert’s Rules by a simple majority vote of the board.

Many association boards have operated with short form procedures by custom without realizing that simplified procedures are specifically provided in Robert’s Rules of Order. However, many boards assume that Robert’s Rules more complex and detailed procedures are required. Section 48 of Robert’s Rules should put to rest any objection anyone may have to the use of simplified procedures in association board meetings.

 

Chelle Konyk, Esq., (www.LawKL.com) is a Florida licensed attorney with the law firm of Konyk & Lemme PLLC. Konyk & Lemme PLLC assists Homeowner, Condominium and Cooperative Associations throughout Martin, Palm Beach, Broward and Miami-Dade Counties in general legal matters including bulk rate cable TV and telecommunications. Chelle is rated "AV" by the U.S. Peer Review Rating Service of LexisNexis Martindale-Hubbell, which defines an "AV" rating as "a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence." The information obtained from this site is not legal advice nor does it establish an attorney client relationship pursuant to Rule 5.7 of the Model Rules of Professional Conduct.

Questions regarding condominium association law in Florida may write to 

Ms. Konyk c/o  The Condo News, 

131 Springdale Circle, Palm Springs, FL 33461 

or you may also email your questions to  betty1941@bellsouth.net 

Be sure to type "Ask the Lawyer" in the subject line.