ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

Last Updated 08/04/2017


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.  


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(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.

 

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(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.

 

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(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.

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(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.

 

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(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.

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(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.

 

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(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.

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(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.

 

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(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.

 

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(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.

 

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(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.

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(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."

 

***

(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.

 

***

(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.

 

***

(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.

 

***

(12-21-16)

QUESTION

Hello. Our Board of Directors recently bought dinner for two owners as a gift of appreciation for volunteering 16 hours over a weekend to put up Christmas lights. The total cost of dinner was $120. As background the building maintenance staff has put up lights and did such a deplorable job that was a safety violation. These two homeowners volunteered to take them down to correct the situation. It became an onerous job and the Board, of which I’m a member, thought they went above and beyond and deserved something to show our appreciation.

A homeowner complained that compensation to an owner for volunteering work violates our fiduciary responsibility. Was a code of ethics or law broken here ?

ANSWER

Sometimes no good deed goes unpunished – the Board may not have the authority to give a gift to a volunteer. Florida Statute, § 617.0830 General standards for directors provides that a director shall discharge his or her duties as a director, including his or her duties as a member of a committee: in good faith; with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and in a manner he or she reasonably believes to be in the best interests of the corporation. The division of condominiums has consistently found it to be a violation to offer such a gift unless the governing documents specifically authorize the purchase. Therefore, although it would be a stretch to classify such a gesture of appreciation as a breach of fiduciary duty, the gift may not be authorized by the governing documents.

QUESTION

I live in a large complex in Broward county. I rented in the complex before purchasing. I don’t remember if it is yearly or every other year each unit is given a set of rules. Having lived in other complexes I find it hard to believe that these rules are either legally written or that they contain any of the rules original to the complex. How do I get a set of all the bylaws as they appeared when the complex was originally built. One question comes to mind as the management shuffles parking spaces around at will, as well as maintaining the premises and some other issues. I know by the attitude that persists here, that if I ask for a copy they will hand me the "brochure": they pass out and tell me that is all the rules for the complex. I would like to know what I can do legally to be sure I have the whole picture.

ANSWER

The governing documents for a condominium consist of the Articles of Incorporation, the Bylaws, the Declaration of Condominium and the Board enacted rules and regulations. The Articles of Incorporation are available by request from the Secretary of State. The Declaration of Condominium and any amendments are required to be recorded in the Official Records of the County which are available from the Clerk of Court. The Bylaws are not required to be recorded in the Official Records of the County – but they usually are and would be available from the Clerk of Court. The rules and regulations are not required to be recorded but they should be available from the association and any changes to the rules and regulations should be reflected in the minutes of the meeting at which they were approved.

 

***

(12-7-16)

QUESTION:

Dear Ms. Konyk:

Thank you very much for assisting with your knowledge and expertise.

Our condo association will soon approve a special assessment to fix balconies. There are 3 different size balconies and one condo does not have any balcony at all.

Current monthly dues are based on condos’ square footage. My questions are: 1. Shouldn’t the special balcony assessment be rated based according to the size of the balcony? 2. If no rating occurs, should the condo with no balcony be spared since there is no common element there? Thank you in advance for your guidance!

ANSWER:

I cannot offer specific legal advice – but generally speaking every assessment for repairs to the common elements of the association is applied pursuant to the pro-rata share as it is defined in the declaration. Each unit would therefore be assessed based on the percentage share for which it is responsible, unless there is something specifically addressing assessments for balcony repairs. Therefore, the assessment is not based on the size of the balcony or whether or not the unit has a balcony; it is based on the prorate share each unit is required to pay based on the provisions of the documents.

QUESTION:

If a unit owner is more than 90 days delinquent in the payment of assessments can the unit owner remain on the board? Our board des not enforce this and there are board members that are delinquent.

ANSWER

No – a director or officer that is more than 90 days delinquent in the payment of any monetary obligation is deemed to have abandoned the office, creating a vacancy. If the board of directors does not enforce this provision of the law a complaint should be files with the Division of Condominiums.

 

***

(11-23-16)

QUESTION:

I live in a nine-story condominium that contains two levels of parking space, 1 level of Assisted Living Facility units, and the rest on condo owned units.

The owner of the ALF, after 12 years of living in peace with our association, has decided to take over 26 spaces in our garage for his ALF units (even though they have been combined into 19 actual units) and he wants to use those parking spaces for his employees to park in (even those employees that have nothing to do with the ALF).

We are telling them that they cannot just take 26 parking spaces and give them to his employees because of the following paragraph in our docs. Are we right, or is he?

Thank you

Declaration of Condominium-pages 14 and 15

4.4.1. Parking Spaces.

Assigned parking space(s) shall be considered a Limited Common Element appurtenant to such Unit as designated on the Plat. The parking space(s) so assigned (i.e. the exclusive use thereof) shall be a Limited Common Element appurtenant to the Unit and shall be for the exclusive use of such Unit and its occupants from time to time. A sale, transfer or encumbrance of the Unit shall automatically, without specifically mentioning such parking space and without the execution or recording of a further instrument, transfer or encumber such space. The exclusive right to use such a parking space(s) may not be separately conveyed, transferred, assigned or encumbered except as an appurtenance to the Unit to which it is attached or assigned in conjunction with the conveyance, transfer or encumbrance of the Unit. Parking space(s) are separate and distinct from garages, which are considered a part of the Condominium Unit.

ANSWER:

The owner of the ALF cannot colonize the Limited Common Elements. Unless the parking spaces the ALF, owner is trying to takeover originally belonged to the ALF and were "loaned" to the condo unit owners, we can find no provision in the law or the excerpt you provided from the Declaration to allow such to occur.

QUESTION:

Our condominium complex was originally built as a boutique luxury hotel in the 1960s. In 2005 it was converted to midrise condominiums without any major structural changes. Because of the high maintenance costs per unit, and increased value of its large parcel of land, the board is investigating the feasibly of demolishing the entire structure and replacing it with high rise condominiums, a hotel, and convention space. The condo board is developing a Request for Proposal. If the board decides to move forward with this plan what percentage of the unit owners would need to approve it?

ANSWER

Pursuant to 718.117Florida Statutes, the affirmative vote of not less than 80% of the Unit Owners is required for a successful plan of termination of the condominium, which would be required if the board wants to move forward with a complete demolition and rebuild. The plan of termination is required to separately state the valuation of the common elements and assets of the association as well as the value of each unit in the condominium. In the event the condominium suffers property damage as a result of a catastrophic event and the costs to restore exceed the fair market value of the units, an optional method to terminate requires only the affirmative vote of a majority of the unit owners.

 

***

(11-9-16)

QUESTION:

I have put offer to one of the condominium for buying. I have approval from one of the very good lenders for buying home, which is conventional home loan. it is approved in a such way that i can pay 3% down and remaining will be funded by lender. I also provided the address and location of condominium to lenders and lender does not have any issue.

Apartment owner is also ok to sell house with 3% down. But now condominium has objection that i should pay 20 to 25% down payment. It is association requirement. I do have stable job and very good credit score. Is it mandatory or can i buy that condominium with 3% down. Due to which i have postpone the decision of buying the apartment.

ANSWER:

The Declaration of Condominium must contain the authority for your condominium to approve sales if it wants to have a requirement for a down payment being equal or greater than a specific percentage of the purchase price. If there is not a provision in the Declaration for the Association to require a specific percentage down payment you may be able to challenge the requirement. The Association may be required to purchase a unit if it denies a sale. Therefore you will need to request or obtain a copy of the governing documents, specifically the Declaration to determine if the Association is within its right to require a specific percentage down payment.

QUESTION:

Our HOA is in the process of setting a meeting to vote on a corporate resolution to allow online voting in our next election (May 2017).Our governing documents stipulate clearly that our voting must be done by "secret written ballot". Since the word "written" is in our governing documents, do we need to amend the documents prior to venturing in to online voting?

ANSWER

No, you are not required to amend your governing documents to vote in an election for directors pursuant to a provision in Florida Statute, Chapter 718.

Associations may elect to conduct elections and other membership votes through an internet-based online voting system according to the following terms:

• Each member voting electronically must consent, in writing, to electronic voting.

• The Association must provide each member with a method to: Authenticate the member’s identity to the online voting system.

• Transmit an electronic ballot for board elections to the electronic voting system that ensures the secrecy and integrity of each ballot.

• Verify the authenticity of receipts sent from the electronic voting system.

• Confirm, at least 14 days before the voting deadline that the member’s electronic device can successfully communicate with the online voting system.

In addition, the condominium association’s online voting system must be able to:

• Authenticate the member’s identity.

• Authenticate the validity of each electronic vote to ensure that the vote is not altered in transit.

• Transmit a receipt from the online voting system to each member who casts an electronic vote.

• Permanently separate any authentication or identifying information from an electronic ballot for board elections, rendering it impossible to tie a ballot to a specific member.

• Store and keep electronic ballots accessible to election officials for recount, inspection, and review purposes.

A member voting electronically is counted as being in attendance at the meeting for purposes of determining a quorum, and for condominium associations, a quorum established based on members voting electronically is only limited to the issue specifically identified in the electronic vote.

 

***

(10-26-16)

QUESTION:

I am the Treasurer on the board of a condo association in S. Florida. Our building is currently at maximum rental capacity (25%) and we’re having difficulty determining who gets the next "right to rent". The Condo currently has certain rental restrictions in the Declarations and Rules, namely these: 1.Owners are PROHIBITED from renting or leasing their condominium unit for a period of time not less than twenty-four (24) months from date of purchase. 2. At no time will more than twenty-five percent (25%) of the condominium units in the Condominium. i.e. eight (8) units, be leased or rented at any given time. 3. Leases for a one (1) year period will be the only permitted lease period. As I’m sure you’re aware, the rental business in South Florida is "booming" and for the first time in my experience (16 years), the Condo is currently at the maximum "rental" capacity of 8 units. The Association is trying to figure out how to handle the "next" rental unit eligibility. Multiple owners are currently interested in renting out their unit. When the next unit is sold, or a rental unit returns to "owner occupied", how do we determine who becomes eligible to rent their unit? The Association has considered the following, but we don’t know the legality of each: Create a rental que ordered by date of owner expressing interest to rent. Create a rental que ordered by purchase date of interested owners. Lottery of interested owners. Do you know how other condominiums handle this situation? Should we modify our Declarations and Rules to reflect how we handle this situation? Thank you.

ANSWER:

You should consult your association attorney for advice as to whether or not your governing documents should be amended. One method for determining the next owner that may offer a unit for rental can be to create a waiting list. When a unit owner expresses an interest in renting they can be added to the waiting list and when a unit drops out of the rental program or is sold the next unit owner on the list is advised he or she can rent the unit. If a unit that is rented is sold – the lease is not renewed and the unit owner must comply with the 24 month waiting period upon expiration of the lease. Any change of lessee should require that unit to move to the bottom of the waiting list.

QUESTION:

Our governing documents state no unit owner may modify the outside of any of our 44 buildings. A unit owner wanted to modify his back room and take out a window and replace with a smaller window (which does not match any other in the complex) plus add a smaller back door. The board let them do the re-modeling (even though it is against our by-laws) saying in previous years several owners did this. Do not know if it was with Board approval or not. Many of us feel no matter what happened in the past it is against the by-laws and should not have been allowed.

ANSWER

If the association has not been enforcing the documents for a period of time; they may be unable to enforce them against owners that have violated them in the past. Usually the association is "estopped" from pursuing violations that have existed for a period of time that is not within the statute of limitations. If the association has not been enforcing its governing documents for a period of time in excess the statute of limitations which is usually five years, they may be "estopped" from enforcing that provision until they cause the owners to be on notice that going forward the covenants within the governing documents will be enforced. Your association attorney can assist you in preparing a letter to the membership commonly referred to as a "Clean the Slate" letter. After the letter is sent to the membership the board will have the authority to enforce the provision going forward and to require compliance from some owners that may have previously violated the provision.

 

***

(10-12-16)

QUESTION:

My son just started renting a condo/co-op unit. One of the requirements was to get a parking pass, which is understandable. When he went to get the parking pass he was told that in order to get the parking pass he needed to change his license and registration to the rental units address. Since this is a rental he has a one year lease - so he may or may not have the option to rent the same unit next year. Is it legal to require him to change the address on his license and registration in order to obtain a parking pass. His license is still showing my address, his original home address. The condo/co-op is about two miles from my home. If he needs to change his address then he will have to change his insurance info, his passport info, his business travel ID, His health insurance address, etc. ( for security reasons his mail comes here to my house)
Thank you for your assistance.

ANSWER:

Besides the fact that the condominium has the authority to require that only residents are issued parking passes, Florida law requires that drivers license addresses are updated within 30 days of moving. Your son is not living with you and his residency is not considered temporary because he only has a one year lease. If your son is a student enrolled in school full-time he can continue to use your address as his permanent address, otherwise he is required to provide his actual address to the Department of Motor Vehicles. The condominium can require that his driver’s license properly reflects his residence in the condo as his address before issuing the parking pass.

QUESTION:

I’m a homeowner in a 108 unit condominium of which many of the residents are seniors, some with disabilities. Do designated meeting sites need to be ADA accessible?

ANSWER

The Americans with Disabilities Act ("ADA") covers a variety of prohibited activities in regard to discrimination against disabled persons. Title III, the ADA section most likely to apply to community associations, prohibits discrimination on the basis of a disability by a private entity in a place of public accommodation. "Public Accommodation" is defined in the ADA by listing 12 types of entities that are considered places of public accommodation. Residential facilities are NOT listed as one of the 12 types of entities. Therefore Common Areas of a homeowners association and Common Elements of a condominium, such as the clubhouse or the pool, are not covered by Title III of the ADA where use is restricted exclusively to residents and their guests and not open to the public. The exemption from the ADA would not apply if the association were to open the Common Areas, such as the clubhouse or pool, to use by the general public who are not residents or guests of residents. For example, if the association rents the clubhouse or the pool to the general public or to an entity that has the exclusive use of the common area such as the tennis courts for the purpose of providing instruction to non-members as well as members. This does not mean the association is exempt from making a reasonable accommodation under the Florida and Federal Fair Housing acts. The difference is in who has to pay for the accommodation. If an alteration or accommodation is required by the ADA the association would be required to pay for the accommodation. If the association is required to make a reasonable accommodation under the Florida and Fair Housing Acts, the person requesting the accommodation is required to pay for the alteration.

 

***

(9-28-16)

QUESTION:

My Florida condo board wants to write rules regulating rentals. Specifically, they are insisting that:

1.They want to have the ability to deny renters for any reason, be it background check or poor credit.

2. The Bylaws state they are allowed to write rules so they feel this grants their authority.

While I understand their intent, I am telling them they do not have the authority to regulate rentals in this manner because the bylaws state: If all assessments are paid up to date, a unit owner may rent or lease such owners unit without further approval. However, the unit owner renting or leasing such owners’ unit shall promptly notify the association or management firm of each renter and the term of such rental or lease. I’ve told the board that an amendment to the bylaws is required before they can put these rules in place.

Can the board simply write regulations regarding rentals into existence?

ANSWER:

You are correct – the board cannot make a rule that modifies the governing documents. In order to understand the rationale for this it is important to note the hierarchy of governing authority for community associations. It is, in order of greatest authority to least authority, 1) Federal Law, 2) State Law, 3) Local Ordinances, 4) Declaration of Covenants, 5) Articles of Incorporation, 6) Bylaws, 7) Rules and Regulations and 8) Robert’s Rules of Order. An association cannot amend its governing documents or create a rule if the amendment or rule will conflict with a provision or a law that has a higher authority.

While your question references the Bylaws as the governing authority, it is actually the Declaration which contains language or should contain language regarding sales and leases. The Declaration is the only document that must contain a provision authorizing the board to conduct approvals of sales and leases; which would include the authority to request credit or background checks. Very often boards are confused because they have the authority to promulgate rules granted in the Declaration or the Bylaws and it is thought that a rule can be promulgated to authorize the board to approve sales or leases. In fact – very often the Declaration contains the precise wording that illustrates why the board cannot promulgate such a rule. The following is often found on the first page of the Declaration following the Whereas clauses: "Now Therefore, Declarant hereby declares that the real property described in Exhibit A is and shall be held, transferred sold, conveyed, used and occupied subject to the covenants, conditions and restrictions herein set forth." This language restricts the Association from any action to approve, investigate or interview a prospective resident unless the authority is specifically granted within the Declaration. If the Board wants to have such authority and it is not already granted in the Declaration, it would require a vote of the membership to amend the Declaration to permit them to seek to approve of sales and leases.

***

(9-14-16)

QUESTION:

Is a condominium permitted to make a charitable donation on behalf of the community with funds from its operating account?

ANSWER:

A condominium is not permitted to spend funds from its operating account unless it is for a common expense as defined by the governing documents. Therefore, unless the governing documents authorize charitable donations as a common expense the condominium is not permitted to make such a donation from the operating account.

QUESTION:

Our HOA board voted to resurface the exposed common areas and passageways in our condo. They intend to do one floor at a time. They claim that it will require the entire floor to be closed to owners for a minimum of 5 days. This is my primary residence. The HOA claims it can legally deny owners access to their units for the 5-day (possibility longer) period. Is that really the case? Thank you.

ANSWER

The board has the fiduciary duty to maintain the common areas. If the maintenance is required and if there is not any other alternative to denying access to you unit, the board has the right to proceed. It would be prudent for the board to determine the exact time required to complete the maintenance and or to hire a company to expedite the repairs to permit you access sooner. Whether the Association is required to compensate you for your living expenses while denied access would have to be addressed by reading your Declaration. There are arbitration decisions that may require the association to absorb the costs for relocation provided there is an incidental damage clause in the Declaration that addresses the issue.

 

***

(8-31-16)

QUESTION:

My Florida condominium is looking to pass an amendment regulating rental rights. I plan to vote against this amendment. I understand that 718.110(13) of the code will retain my right to rent. There are some interesting parts to the proposed amendment beyond basics such as requirement for board approval of tenant and requiring lease. Also, want to require a specific lease. Are these types of restriction covered under 718.110(13) as not valid?

ANSWER:

If the Board proposes an amendment to limit or restrict your right to rent your unit and it is passed by the unit owners you must vote yes for the amendment in order to be subject to the restrictions. The board can still seek to bind you to an amendment to require background checks or board approval of tenants whether your vote no or do not vote.

QUESTION:

What is the process for requiring a Unit to install Hurricane Glass and can the board disallow the use of Hurricane Shutters once the Hurricane Glass is installed.

ANSWER

In order for the Board to require all unit owners to install impact / hurricane glass it must have the authority to do so granted it in the declaration either as originally recorded or as amended. Many associations have successfully passed amendments to their governing documents to require all unit owners to install hurricane glass. The hurricane glass offers protection and the association will realize a savings on the windstorm insurance. The association can require that any non-code compliant shutters are not reinstalled and many glass manufacturers warn against installing hurricane shutters over impact glass doors and windows. Therefore many boards do not permit a unit owner to compromise the wind protection by installing shutters over hurricane glass. The manufacturer and installer of the hurricane glass would be a good source to inquire as to whether or not hurricane shutters are recommended in conjunction with hurricane glass.

QUESTION:

Our 292-unit Florida condo has several ’speed bumps’ that were installed by the developer before the association was turned over to the owners over 15-years ago. Our president would like to install more of these ’speed bumps’ at the dismay of the owners. He contends that this decision can be made at the board level, thus foregoing the need for a 75% owner voting approval. He bases this on some obscure case law and then concludes his argument with something like ‘every time that I call the State, they will not give me a direct answer, thus it defaults to a BOD decision’. The owners that I know contend that this installation is a material alteration of the common elements and would require a 75% owner approval vote in accordance with our declaration. It would seem to me that something like this would be pretty fundamental in either the Florida Condo Statutes or Florida case law, i.e. I would think that the installation of ’speed bumps’ has been discussed many times and has some type of consistent remedy. Can you help me with this one?

ANSWER:

Adding additional speed bumps would be a material alteration or substantial addition to the property or the common elements requiring a vote of the owners, provided the authority to add speed bumps is not already granted in your governing documents. The state is not going to interpret your governing documents and perhaps that is why the board is unable to get an answer. The board takes on a tremendous amount of responsibility as volunteers and it perplexes me why they fail to rely on the advice of professionals when it comes to the business of operating the association.

 

***

(8-17-16)

QUESTION:

The board is trying to say they have authority to assign and reassign parking places in our condominium. Below is state statutes and language from our declaration and old bylaws and new bylaws in 1986. Several owners have told board that our parking places are Limited Common Elements (LCE) and cannot be transferred. Our docs call them LCE’s and then the bylaws says they are not LCE’s. Wouldn’t the Declaration supersede? And if not the 1986 bylaw changes it to the parking place transfers with the sale. Exact language of The 2016 Florida Statutes 718.103 Definitions. — As used in this chapter, the term:(19) "Limited common elements" means those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration. Exact language of our ABTR Declaration; Arlington by the River, June 30, 1983; Declaration of Condominium; Definitions 2.10 Limited Common Elements means and includes those Common Elements which are reserved herein, or assigned, or granted separately herefrom, for the use of a certain Unit or Units to the exclusion of other Units, consisting of (a) to each Unit, the balcony, porch and/or deck appurtenant thereto and other equipment and/or fixtures, if any, attached, affixed or contiguous to the exterior of and serving only that Unit; and (b) to each Unit, the right of exclusive use of the assigned parking space in the parking lot serving that Unit; and (c)…….go on to talk about second phase which was never built. OLD BY-LAW 1983 By-Laws Article LX Miscellaneous, Section 7. The Board is authorized to assign parking spaces to unit owners on a first come, first basis. Assigned parking spaces shall not be limited common elements and the right to use an assigned space shall not be transferable to a new owner upon sale of a unit, however each unit shall be entitled to at least one assigned parking space; NEW BY-LAW 1986. The above By-Law was changed in the Amendment to the Declarations in 1986.Section 7, Assignment of Parking Spaces. The Board is authorized to assign parking spaces to unit owners on a first come, first basis. Assigned parking spaces shall be transferable to the new owner upon the sale of a unit. Each unit shall be assigned one parking space. Oversize vehicles, boats and trailers shall be parked only in areas designated by the Board of Directors, furthermore the Board shall determine what is classified as an oversized vehicle.

ANSWER:

The Board does not have the authority to reassign the Limited Common Elements assigned at inception unless that authority is specifically granted in the Declaration. If the parking spaces are not mentioned in the Declaration and defined as Limited Common Elements, then they are in fact Common Elements. Pursuant to the information you provided, your parking spaces are mentioned in the Declaration and are identified as Limited Common Elements assigned or granted separately. It is highly unlikely given the information you provided, that your board has the authority to reassign these parking spaces. There is a Florida Court Case (Juno by the Sea North Condominium vs Manfedonia; Fla.App., 397 So.2d 297) that addresses this issue. In this case it was held that the board did not have the authority to "reassign" limited common element parking spaces. Unfortunately, you will need to review all of your governing documents and perhaps consult an attorney to determine what the specifics are in the case of your parking spaces, as this answer is not intended to be a legal opinion regarding the specifics of your situation.

 

***

(8-3-16)

QUESTION:

I live in a condominium in Florida that is a three story building. We have been told we have to vote before December 2016 if we want to avoid having to retrofit to install fire sprinklers in the Units. Please advise as to how we accomplish this so we can proceed. There are so many conflicting articles about this subject we don’t know where to turn.

ANSWER:

This topic has been hotly debated recently and unfortunately a lot of misinformation has been circulated. It seems many are turning to the Division of Condominiums for the answer when in fact it is the State Fire Marshall who has the authority and the expertise to address this issue. In fact, the State Fire Marshall recently issued a Declaratory Statement (Case No.: 189152-16-DS) that addresses the issues regarding retrofitting for sprinklers or implementing an Engineered Life Safety System

First and foremost – There is no state or local fire code requirement that all existing mid or low rise residential occupancies must retrofit fire sprinklers in any of the 50 states including Florida. The provision of the Fire Code requiring retrofitting for sprinklers or Engineered Life Safety Systems applies only to buildings classified as high-rise residential occupancies which are usually 75 feet or greater in height.

There is a provision of the Florida Fire Protection Code (FFPC) which allows high-rise residential occupancies to retrofit fire sprinklers or to implement an Engineered Life Safety System which may include common area sprinklers as well as smoke removal systems, pressurized stairways and other features as cited in 31.3.5.11.4, of the Life Safety Code. It is clear in section 31.3.5.11 of the Life Safety Code that only high-rise residential occupancies must retrofit for fire sprinklers or in the alternative must comply with and implement an Engineered Life Safety System.

When 718.112 (2) (l) was first implemented, it permitted a high-rise condominium to vote to opt out of complying with either retrofitting fire sprinklers or implementing an Engineered Life Safety System. This original version of the law also expressly excluded low-rise and mid-rise buildings even though the FFPC did not require a low-rise or a mid-rise building to comply with either retrofitting fire sprinklers or implementing an Engineered Life Safety System.

There was some confusion created when 718.112 (2) (l) was revised in 2010, as it removed the reference to low-rise and mid-rise buildings and some have incorrectly interpreted this to mean that low-rise and mid-rise buildings could not opt out or to debate whether or not the provisions in 718.112 (2) (l) applied to low-rise and mid-rise buildings. This debate can be put to rest because there is no state or local fire code requirement that any existing mid or low rise residential occupancies must retrofit fire sprinklers in any of the 50 states including Florida.

To add to the confusion, the revised version of 718.112 (2) (l) removed the provision that allowed high rise residential condominiums to opt out of implementing the Engineered Life Safety System if they also were voting to opt out of retrofitting for sprinklers. In fact, as a result of the 2010 revisions to the law, if a high rise condominium votes to opt out of retrofitting for fire sprinklers, it is in fact opting in to the requirement that it implement an Engineered Life Safety System. It is imperative that prior to voting to opt out of retrofitting for sprinklers, a condominium should consult with a fire protection engineer to get an estimate of the cost to implementing an Engineered Life Safety System, which can be considerable more expensive to implement then retrofitting for fire sprinklers.

The facts are as follows:

• It is a fact that a low-rise or mid-rise building is not required to retrofit for fire sprinklers or implement an Engineered Life Safety System under any fire code in any of the 50 states.

• It is a fact that high-rise residential buildings that have exits directly from the units to an outdoor corridor are not required to retrofit for fire sprinklers or to implement an Engineered Life Safety System.

• It is a fact that high-rise residential buildings that have exits from the units into an indoor corridor are required to either retrofit for fire sprinklers or to implement an Engineered Life Safety System.

• It is a fact that a high rise condominium in Florida can, by the vote of the unit owners, opt out of retrofitting for fire sprinklers because it is granted the authority to do so by 718.112 (2) (l).

• It is a fact that if a high rise condominium in Florida votes to opt out of retrofitting for fire sprinklers pursuant to the provisions of 718.112 (2) (l), the condominium must comply by implementing an Engineered Life Safety System.

• It is highly recommended that only a Fire Protection Engineer should be hired to implement an Engineered Life Safety System.

• Before voting to opt out of retrofitting for sprinklers, a cost estimate for implementing the Engineered Life Safety System should be determined. It may be determined that it is more cost effective to retrofit for sprinklers.

In reality the fire code has changed several times in the last 30 years and many high rise buildings were required to install fire sprinklers when they were built and / or to comply with fire code requirements that were not in place in the earlier years. The final authority on this subject is the State Fire Marshall. We would encourage those that are still questioning what they are required to do in order to comply with the provisions of the Fire Code and 718.112 (2) (l) to contact the local municipalities fire official if they are in doubt as to the requirements as they relate to a specific residential building. The local fire officials have already identified which buildings in the municipality that are not in compliance.

 

***

(7-20-16)

QUESTION

There are members in our association that rent the units they own on a short-term basis. The short-term renters are causing damage and are a nuisance to the unit owners that live in the association full-time. Can a condominium association charge unit owners that cost the association more money for repairs and security more in assessments to offset the additional costs the rentals cause the building? Is there any way to stop the owners from allowing short-term rentals?

ANSWER

Unit owners pay assessments pursuant to the proportionate share each unit is assigned in the Declaration. A vote of 100% of the unit owners is required to modify the proportionate share each owner pays unless there is a provision in the declaration that allows a modification. Rentals are controlled by the provisions in the declaration that address a unit owners ability to lease a unit. Short term rentals are often prohibited by the declaration. Short term or transient rentals may be further controlled by ordinances enacted by the municipalities where the properties are located. Most municipalities require a unit owner that causes a unit to be rented on a transient basis to register as a business. Most declarations strictly prohibit a unit owner from using the unit for a commercial purpose. Even if rentals are permitted – any rental that can be classified as a transient rental may be prohibited because such a rental is a commercial use. The specific issues you mention are the logical reasons that such transient rentals should be prohibited or controlled.

QUESTION

Our condo documents state that a majority vote of the of members in person or by proxy is required to pass a material alteration. I just read that the Florida statutes require 75%, unless a higher percentage is required in our documents. I thought I read somewhere that condo documents could require a higher percentage but not a lower amount is this correct? Question: Is our percentage of majority legal? Or do we need the 75%?Thank you for any help you can give me.

ANSWER

The provision in the Florida Statutes you are referring to is 718.113 (2)(a) and it states as follows: Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.

The provision you reference defers to the requirements of the declaration first and if there is not such a provision in the declaration the law requires a vote of 75% to approve a material alteration. There is not anything in the law that requires the approval of more than a majority of the unit owners if the unit owners if the provision in your declaration requires a majority vote.

 

***

(7-6-16)

QUESTION

If reserves are being funded in an association, can the board or owners vote to "Suspend funding" of those reserves in the middle of the budget year?

ANSWER

Yes, the owners may vote to suspend funding of the reserves provided the board holds a budget meeting for the purpose of voting to not fund the reserves pursuant to all of the requirements of the documents and Florida Statute 718. Florida statute 718 requires 14 days’ notice mailed (along with a copy of the proposed budget) and posted, unless documents require a longer time period. The decision to suspend funding must be ratified by the majority of those present in person or by proxy provided there is a quorum.

QUESTION

Is it against the law to indicate a pool rule for children under 3 or with diapers to restrained from using the pool? I was told that it is discriminatory and also is on many other condo rules. Would greatly appreciate your comments.

ANSWER

Pursuant to the FLORIDA ADMINISTRATIVE CODE CHAPTER 64E-9 —

PUBLIC SWIMMING POOLS AND BATHING PLACES: Swim diapers are recommended for use by children that are not toilet trained. Persons that are ill with diarrhea cannot enter the pool. Therefore we would advise that children under the age of 3 that are wearing swim diapers should be allowed to use the pool.

 

***

(6-22-16)

QUESTION

While the law says a director abandons their post if they have been over 90 days delinquent in any monies owed the association, it doesn’t define abandonment. Can you clarify if abandonment is permanent or just for the director’s term? Also, while the remaining directors must fill the abandoned position according to the law, what happens when there are only two directors left (Board has 3 in total). Would the two be considered a quorum and do they appoint another owner to the Board or should they ask for those willing to run and have a vote. Also, if the person who abandoned their post now pays the delinquent amount can they reclaim their position (abandonment means permanent to me). If that person pays their past due, can their spouse just go into the position if the directors agree?

 

ANSWER

A director that is over 90 days delinquent is ineligible to serve for the remainder of the term. This would not prevent the person from running for the board in the future provided the person is no longer delinquent. The person that has abandoned their position may not merely pay the delinquency to remain on the board. The bylaws should be reviewed to determine the method for filling the vacancy. The board could appoint the spouse even though they were technically ineligible at the time of the abandonment due to the delinquency since he or she was a co-owner of the unit with the delinquency. Finally, if the delinquency has been cured and the bylaws permit the board to fill a vacancy, there is nothing in the law preventing the appointment of the board member that was delinquent.

 

QUESTION

At a recent board meeting our president resigned and there were no nominations for an acting president or another board member nominated to take his place. It was tabled for the next meeting. Our next meeting is at the end of June and some of the board member will be on vacation, so I’m not sure if there will be a president anytime soon. I thought a condo board had to be run with all it officers especially a president. Please advise.

 

ANSWER

In the absence of the president the vice president assumes the role of president. The board may conduct business provided there are still enough members on the board to establish a quorum. If there are not enough members to establish a quorum the board should proceed to either appoint a member to serve unless the bylaws require an election.

 

QUESTION

Can an amendment to the declaration from 1996 be invalidated if the records from 1996 do not exist and there is no way to verify that he required vote was achieved.

 

ANSWER

No, the amendment cannot be invalidated as the statute of limitations requires that a challenge to the validity of the vote for the amendment must be brought with the five year statute of limitations.

 

***

(6-8-16)

QUESTION

Thank you for helping Florida Condo owners with your expertise. Our Condo in Broward County is voting for a major restoration and renovation, changing many architectural details of the complex. They have sent out a written consent form with a list of 12 changes and I am in favor of all but one. I would like to cross off that one item and state I am agreeing YES on all other 11 items. Can I do this or do I have to agree to all? We have 10 days to return the consent agreement.

ANSWER

If the ballot requires only one vote for all twelve items you must vote no if you want to disapprove any of the items. If you attempted to vote no on only one of the items presented the board would have no choice but to either disregard your vote or tally it as no.

QUESTION

Can you borrow from a reserve account for an emergency if the money is replaced before the end of a year?

ANSWER

No, unless you get a vote of the members. This is because in a condominium a vote of the members is required in order to use reserve funds or other than its stated purpose. This includes borrowing from the reserves. In fact, pursuant to the administrative code, section 61B-22.005, a condominium is required to deposit reserve funds into the reserve accounts as the money is received. Therefore, as the assessments are collected the reserve funds must be placed in the reserve accounts. Reserves included in the adopted budget are common expenses and must be fully funded unless properly waived or reduced. Reserves shall be funded in at least the same frequency that assessments are due from the unit owners (e.g., monthly or quarterly).

Reserves required by Section 718.112(2)(f), Florida Statutes, for capital expenditures and deferred maintenance including roofing, painting, paving, and any other item for which the deferred maintenance expense or replacement cost exceeds $10,000 shall be included in the budget. For the purpose of determining whether the deferred maintenance expense or replacement cost of an item exceeds $10,000, the association may consider each asset of the association separately. Alternatively, the association may group similar or related assets together. For example, an association responsible for the maintenance of two swimming pools, each of which will separately require $6,000 of total deferred maintenance, may establish a pool reserve, but is not required to do so.

 

***

(5-25-16)

QUESTION

Our condo is faced with replacing our aged cast-iron piping. The pipes are located in a chase created by opposing unit walls. Only one wall needs to be opened to do the work. Our docs only require the association to replace the wall to a "paint ready finish", regardless of any tile or cabinetry that may need to be removed. My question is, the unit who’s wall needs to be removed will incur an individual cost to replace anything beyond the wall surface, while the abutting unit owner will not: How does the association determine who’s wall gets removed since the cost to the association would be the same for either wall? Our docs are silent on the issue of whose wall gets removed for repairs.

ANSWER

This is a question that needs to be answered by the general legal counsel for the association. Generally speaking – the provision that relates to the Associations responsibilities and the owners responsibility for repairs within a unit relates to a casualty loss not a necessary repair. More than likely the Association is responsibly for the repairs needed to the walls since it is necessitated by a maintenance repair.

QUESTION

I am currently a board member of a 5 board member condo that has meetings under the guise of "personnel issues" therefore not open to the members. The meetings are not noticed and they do not record minutes of these "closed meetings". The board recently voted under this guise to replace the current management company. I am concerned that this decision should have been duly noticed to the members. I am concerned that this decision may have violated State Statute but have been out voted by the other board members. The members were notified by the Board President of the change in management via email and we are having numerous concerns and complaints from the members that they did not know about this change as they were never notified of a board meeting. What should I do??

ANSWER

It is important to note that every meeting, whether it is a closed board meeting or a board meeting open to unit owners, must be posted. A meeting regarding the selection of a management company is not a personnel meeting, it is a meeting to discuss a contract. A personnel meeting deals with specific issues regarding a specific employee not contract issues with a management company. The board should consult with its legal counsel for advice as to clarification of this often misinterpreted provision. It was not the intent of the law that the open meeting requirement be circumvented by the board to discuss contract issues. The only time the board can prevent the membership from attending a meeting is when the board is meeting with legal counsel regarding threatened or pending litigation or when the board is addressing a specific employee’s personnel issue. If the board refuses to address your concerns or to seek an opinion from counsel a request for clarification to the Division of Condominiums may be in order.

 

***

(5-11-16)

QUESTION

Our Condo Board has voted on and approved a Special Assessment PRIOR to having a Fully Executed Contract (reviewed or signed off by the Condo Attorney) for a $300,000.- Lobby Renovation Project.

ANSWER

What came first - the chicken or the egg. The project cannot be implemented until the contract is signed but the contract can’t be signed until the board is sure it will be funded. The real issue may be whether the board has the authority to approve a material alteration and or a special assessment without the vote of the owners. The governing documents, specifically the declaration would have to be reviewed before making that determination. Pursuant to §718.113, there shall be no material alteration or substantial additions to the common elements except in a manner provided in the declaration. If the declaration is silent 75% of the total voting interests must approve the alteration. If your board is acting responsibly they will seek the advice of the association attorney prior to proceeding with the project.

QUESTION

Dear Ms. Konyk, Thank you for helping Florida condo owners with your expertise. Our condo in Broward County is voting for a major restoration and renovation, changing many architectural details of the complex. They have sent out a written consent form with a list of 12 changes and I am in favor of all but one. I would like to cross off that one item and state I am agreeing YES on all other 11 items. Can I do this or do I have to agree to all? We have 10 days to return the consent agreement.

ANSWER

If your board is requesting that you vote for something that usually requires a vote to be conducted at a meeting – the procedure that it is following is likely written consent in lieu of a meeting, which allows the board to collect votes for ninety days after it receives the first vote. If the board presented the project as one vote for all 12 items, then you cannot vote for the items individually. If you were to return a ballot advising you approved all but one of the items – your vote would be void. If the project fails to secure the necessary votes in the affirmative the board cannot proceed with the renovation.

QUESTION

Our HOA president has just sold his condo here in Fl., he maintains that he can continue on this board despite being a non-owner. Is this correct?

ANSWER

If the governing documents permit service on the board by non-members, this board member would be permitted to remain on the board. The provision for non-members to serve on the board is sometimes specific, in that it identifies a non-member spouse of an owner as being eligible or sometimes it is broadly written and it would make anyone eligible to serve on the board. You have to refer to your governing documents to see if this is permitted.

***

4-27-16)

QUESTION

My condo just informed me that the key box was broken into and my key was taken. They advised me to have my locks changed and to provide them with a new key for emergencies and access. My concern is the cost to change the locks and my husband often arrives in Florida and has a board member let him in to the condo. What are my obligations?

ANSWER

Access, under the statute, must be granted if it is necessary to enter a unit for repairs to the common area or to remediate a situation that may be impacting another unit – such as running water. If the governing documents so provide, the unit owner is required to give the association a key to the unit. Access is not for the convenience of a unit owner who is locked out nor is it to provide entry upon arrival to the unit. If the association is entrusted with keys to the unit the keys should be secured and the board members should not have unfettered access to the keys. There are safes available for the purpose of securing keys and management should have access to the combination or should retain the key to safe. Board members are volunteers and neighbors and as such they should not accept the responsibility of the safekeeping of the keys to units.

QUESTION

I have recently been elected the president of our 40 unit condominium and are contemplating a number of projects which would be considered a "material alteration." In the past, I have been told that many of the older residents simply fail to vote rather than rejecting these improvements/alterations which achieve the result of defeating the projects without actively voting against the projects. If this is the case, is there any remedy to the 75% approval?; would a statement to the effect of "failure to cast a yes or no vote will relinquish your vote to a decision by the Board of Directors on this matter.?"

ANSWER

Read your Declaration before assuming a vote is required. There may be a lower percentage required to pass a material alteration or in some instances a vote may not be required. Additionally, if there is a change in the building code requiring a modification, the vote of the owners may not be required. Consult with your general legal counsel to determine when a vote is required. In regards to your inquiry, you may not require that a non-vote is anything but a non-vote. Therefore you will be required to secure the required percentage of affirmative votes in order to proceed with a project that requires the vote of the owners.

 

***

(4-13-16)

QUESTION

We have a POA and tried to make a change. We need 75% to make a change. 75% of our homeowners equal 20.25. Do we round down to 20 members needed or up to 21. Thank you.

ANSWER

You round up, otherwise you will not have achieved the minimum required of 75%.

QUESTION

My condo complex was built in the mid-70s. Reserves have been historically kept for the following items: Roof, Painting, Pavement and Washer-Dryers. While many other property components would cost more than $10,000 to replace or repair, no reserves have been set up for them. For example, elevators, swimming pool, clubhouse, plumbing. These are all now 40 years old and will need to be replaced within the next few years. Also, owners are not asked to vote annually on whether or not they want to waive funding the reserves. That said, some board members have been known to claim that our reserves are fully funded. Should our Board not be creating new reserves for those items that will cost more than $10,000 to replace or repair and then ask owners on an annual basis whether they want to waive funding the reserve? Also, when waiving reserves, can owners do it on a line by line basis or must it waive overall?

ANSWER

Section 718.112(2)(f) of the Florida Statutes and Rule 61B-22.005 of the Florida Administrative Code require ALL Florida condominium associations to fund reserve accounts for deferred property maintenance and replacement projects. Specifically, a reserve account must be established for roofing replacement, property painting, asphalt paving, and any other project that has an anticipated cost of greater than $10,000.The membership is not required to vote to fund reserves – but it is required to vote annually to waive or partially fund reserves. Two budgets should be presented, one with reserves fully funded and one with the reserves either partially funded or waived. The board makes the decision to present the vote to waive reserves and as such they can suggest the membership vote to approve funding reserves only for specific items or for partial funding of the reserves. Ultimately it is the membership that approves waiving or partial funding of the reserves by a majority vote each year. Reserve and operating funds may not be commingled for more than 30 days from the date of receipt of a maintenance fee payment. As such, if an association receives maintenance fees monthly or quarterly, they must contribute the appropriate amount to their reserve funds monthly or quarterly.

 

***

(3-30-16)

QUESTION

Hello, our condo association regularly interviews new owners after a background and credit check. Do we have the right to refuse anyone due to criminal record? Where can I find the documentation for this problem?

ANSWER

If the declaration contains provisions for approval by the association of sales and or leases, the board of director can refuse a prospective occupant because of a criminal background provided the board is consistent in its review. The board should adopt a criteria that it uses consistently when reviewing background and criminal checks. The board cannot refuse occupancy by person that is a member of a protected class.

QUESTION

We have a couple of "energetic" condo unit owners who constantly email the CAM and Board of Directors with questions, comments, complaints and observations. The tone and content of the emails are usually inflammatory, insinuating and non-value added. Is the CAM or the Board obligated to answer the emails? I couldn’t find any Florida statutes that addressed this. Thank-you.

ANSWER

All business of the Association should be conducted at a properly noticed meeting and an individual board member should never answer questions on behalf of the board. These email inquiries should be discouraged and the board should adopt reasonable rules for communication and inquires. The rules can require that any inquires must be in writing and delivered via certified mail. The rules can also limit the number of inquiries a resident can make in a month. After implementation of the rules for inquires the board should provide the residents with the rules and advise that it will limit all email communication. No one is required to be abused by a resident who uses emails to intimidate or insult the board or the manager.

QUESTION

If a condo rule has been violated for over 5 years and not enforced, does that condo rule become waived and is it no longer enforceable?

ANSWER

A rule that has not been enforced cannot be enforced until the board sends a "clean the slate" letter advising the rule will be enforced in the future. The letter would serve to put the community on notice of the issue and to allow those that cannot conform to be grandfathered. An example for "grandfathering" would be a unit owner that has two dogs in a condominium whose declaration only permits one dog. If the board failed to enforce this rule and takes steps to correct the failure – the unit owner with two dogs would be permitted to keep both until one of the dogs no longer resides in the unit.

 

***

(3-16-16)

QUESTION

At the beginning of an open meeting of our condominium’s board of directors, the president stated that meeting notices were posted less than the statutory minimum of 48 hours and that therefore the meeting was not official and would be just for informal discussion. No business was allowed to be voted on because of the insufficiency of notice.

At the next meeting, minutes were read and the board voted to accept the minutes as read over the objection of a unit owner who raised a point of order that minutes may only be accepted from meetings that have been properly noticed to the unit owners and have a quorum of directors.

These minutes state that the president said that the policy of the condo giving holiday gifts to the management company will continue as was done for the past 3 years and "the board agreed," even though no vote was taken or recorded in these unofficial minutes.

Are these minutes legal since the meeting was declared at its outset to be unofficial?

May minutes state that "the board agreed" without recording a vote?

ANSWER

If there was not a quorum of the board – there was not a meeting. If there is not a meeting no business can be conducted. Therefore there should not be any minutes. There is a provision in the law that permits a board to conduct a meeting by written consent in lieu of a meeting. Pursuant to Section 617.0821, Florida Statutes, the Board of Directors may approve an action by unanimous consent. This action will have the same force and effect as if taken by said directors at a meeting of the Board of Directors of the Association duly called and the undersigned Directors direct that this written consent to such actions be filed with the minutes of the proceedings of the Board of Directors of the Association. Unless the articles of incorporation or the bylaws provide otherwise, action required or permitted by this act to be taken at a board of directors’ meeting or committee meeting may be taken without a meeting if the action is taken by all members of the board or of the committee. The action must be evidenced by one or more written consents describing the action taken and signed by each director or committee member; Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date; A consent signed under this section has the effect of a meeting vote and may be described as such in any document. NOTE: The underlined provision means all of the board members must take the same action i.e. unanimous. In the event the entire board does not agree – the matter should be discussed at the next board meeting. At a board meeting, the matter would be decided by the majority.

 

***

(3-2-16)

QUESTION

Our condo President hired our Management Company’s Administrative Assistant to be our Association Secretary last year. She wrote up our minutes pretty well the first 2 meetings, but slacked off the last 3 meetings and did tape recordings that never got transcribed. Scuttlebutt from the Board Meeting when our previous President hired her at $50/hr. was that she was offered the job and she took it, without any formal vote by the Board members.

As a previous Assoc. secretary, I was horrified to see the current condition of our association minutes notebook. Before our Members’ meeting, it had no records before March 2013. Somebody had removed the previous secretary’s minutes. After the meeting, the notebook miraculously had complete minutes from 2008 to 2014, but nothing from last year. Last year’s records that this hired secretary was responsible for, were all missing. Now the new president/secretary is trying to fill in those gaps and requested minutes from the last 2 years from the last 2 secretaries. They refused to send him anything except one recording from the Board meeting we held last week.

Do tape recorded meetings count as official records for a meeting? Is our association liable for these missing records? Thanks for your opinion.

ANSWER

If a tape recording is retained by the association after the minutes are created the tape recording is part of the official records of the association. If an individual tapes a meeting for the purpose of creating the minutes and keeps the tape after the minutes are created it could be argued that the tape is still part of the official records. Many associations tape a meeting so that the minutes can be created later but most attorneys would advise that the tape should be deleted after the minutes are created. The minutes of a corporate meeting are to reflect the business that was conducted at the meeting. It is not intended for corporate minutes to be a transcript of the entire meeting. The business is conducted at a meeting via motions. The minutes should reflect any motions made including who made the motion, who seconded the motion and perhaps a few sentences about the discussion and then how the members votes.

QUESTION

My condo complex was built in the mid-’70s. Reserves have been historically kept for the following items: Roof, Painting, Pavement and Washer-Dryers. While many other property components would cost more than $10,000 to replace or repair, no reserves have been set up for them. For example, elevators, swimming pool, clubhouse, plumbing... These are all now 40 years old and will need to be replaced within the next few years. Also, owners are not asked to vote annually on whether or not they want to waive funding the reserves. That said, some board members have been known to claim that our reserves are fully funded. Should our Board not be creating new reserves for those items that will cost more than $10,000 to replace or repair and then ask owners on an annual basis whether they want to waive funding the reserve? Also, when waiving reserves, can owners do it on a line by line basis or must it waive overall?

ANSWER

The budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The members of an association, by a majority vote at a duly called meeting of the association, may vote to provide no reserves or less reserves than required by this subsection. If the budget is not presented with fully funded reserves, the board must permit the members to vote to either accept or reject the budget as it relates to the funding of the reserves.

QUESTION

Can the board of our condo association purchase 200 units to rent on behalf of the association?

ANSWER

Pursuant to Chapter 718.111 (9) PURCHASE OF UNITS.—The association has the power, unless prohibited by the declaration, articles of incorporation, or bylaws of the association, to purchase units in the condominium and to acquire and hold, lease, mortgage, and convey them. There shall be no limitation on the association’s right to purchase a unit at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments, or to take title by deed in lieu of foreclosure. Therefore, unless your governing documents specifically prohibit the purchase of units, your board can continue to purchase and rent units.

 

***

(2-17-16)

QUESTION

There is a condo owner running for the board. A few years ago this person was recalled from the board for many infractions. Can they run again?

ANSWER

All members are eligible to run for the board except a person convicted of a felony is not eligible unless such felon’s civil rights have been restored or if the member is delinquent in the payment of any monetary obligation. A member who was merely recalled is eligible to run for the board.

QUESTION

I see that you have answer questions in regard to Associations. I live in condo governed housing area. My question is how long does the board have to review a new buyer’s application for membership, and to accept or reject this buyer for membership?

Thanks in advance for your consideration to answer my question.

ANSWER

The board must have the authority to approve or reject a prospective buyer granted in its Declaration. The Declaration should include the time allotted to the board to consider the buyer or it should be stated in the criteria used by the board to accept or reject. Not more than 30 days would be considered a reasonable amount of time for consideration.

QUESTION

I’m very pleased to have discovered your blog online, and I hope you can provide some feedback on my community’s dilemma. We are a condo association in Miami; our community exists of 110 units and is approximately 35 years old. We have two tennis courts and a pool. The owners and residents learned at a recent board meeting that our board president is negotiating with the local YMCA to allow their members/guests to use our pool for swimming lessons (they do not have one). In return, our association would be compensated and owners would have their registration fee waived if they decided to join the Y. Most of the residents are up in arms about this and do not want it. We feel that our residential community is just that — our home and not a public park. Can the board just push this through without taking into account the opinion of the owners? Our president, who does not live in our community and rents his unit, has stated publicly that this will be a great draw for renters. What can we do about this beyond engaging in a letter-writing campaign to the YMCA letting them know we do not want this intrusion into our quiet community? Any advice you can give would be appreciated.

ANSWER

In order to implement a program to sell memberships or to permit non-members to use the amenities, the affirmative vote of 100% of the membership could be required, as this could be construed as a change to the general scheme of the development. Providing non-members access to the community’s amenities without the requirement that they are a guest of a resident is not permitted unless it is authorized by the Declaration of Condominium. In fact, the Nineteenth Judicial Circuit Court of Florida issued a highly publicized ruling in Granuzzo v. Willoughby Golf Club, Inc., that "even though 67% of the voting members approved the amendment, the amendment had the effect of destroying the general scheme of or plan of the Willoughby Community." Therefore, it concluded that to implement such a change, it was required that 100% of the affirmative vote of the membership is required because such an amendment was an impermissible deviation from what had existed at the time of purchase.

 

***

(2-3-16)

QUESTION

Is it a breach of the Board’s Fiduciary Duty if they sign contracts without having them reviewed by the association attorney?

ANSWER

This is a very good question - and it hits close to home. As general legal counsel to community association’s we are often provided with facts as to a vendor or a management’s company failure to meet the expectations of the Board of Directors. We are asked to send the vendor or the management company a letter advising that the services are being cancelled. Upon review of the file, it is discovered that the association never sent us this contract to review and merely signed the contract put in front of them by the vendor or the management company. When we ask for the copy of the contract we find that it is not written in the best interest of the parties - but it is very slanted to the vendor. The board has a fiduciary responsibility to act in the best interest of the corporation. It is not in the best interest of the corporation to sign a contract without having it reviewed by an attorney. Very often there are auto-renew provisions that are onerous and excessive. Contracts that have an auto-renew feature that is in excess of one year should never be signed. In most cases, contract’s that have anything but a 30 day cancellation with or without cause should not be signed. Contracts that do not have a realistic cap on increases should not be signed. Very often a cable contract has a broadcast fee that is not limited to increases that are capped by the annual escalator. Contracts that require the association to indemnify the vendor or management company for anything beyond the association’s contractual responsibilities should not be signed. The list goes on and on. Associations should be concerned about entering into contracts with vendors or management companies that have been known to sue an association for enforcement of its slanted contract or with vendors that cause the association to enter into a contract with unfair provisions without the advise of counsel. Signing one’s name to a contract should not be taken lightly. Board members are volunteers and they should not do anything to incur personal liability for a volunteer position. As a board - it is prudent to budget accordingly so that you have the ability to seek the advise of professionals when it is required. Do not enter into contracts without proper legal advise as it could end up costing far more than the legal fee to review the contract may have cost.

QUESTION

We have a renter who is running for our Condo Board in Palm Beach County Florida. He has been completely disruptive at meetings, insists on being elected President for the new Board and is insisting on being a check signer, even though he has only rented in our community for 6 months, and has never served on a Condo Board in Florida. We found out he has very poor credit. below 500 ... can we stop him from being President or being on the Board at all, our being a check signer with such deplorable credit?

ANSWER

Merely being a renter does not entitle this person to serve on the board, the association bylaws must have a provision that specifically permits non-owners to serve on the board. Absent a provision allowing membership on the board by a non-owner there is nothing you can do to stop this owner from serving if he is eligible. If the unit is more than 90 days delinquent in a monetary obligation or if the bylaws do not permit a board member that is not an owner - the renter is ineligible.

 

***

(1-20-16)

QUESTION

Hello our condo documents say a certain percent can be rented out and I was told we are over that limit. My question is can an owner do a records request and ask to see the number of rentals, the number of owner occupied and the number if any of units owned by the Association itself or is this against the law to see?
Thank you.

 

ANSWER

The association is required to provide you with the information you are requesting as part of an official records request. Please note, you are not entitled to view applications for rentals or any background or financial reports received from a tenant.

QUESTION

Our 52 unit condo currently has in place a policy granting board approval for owner modifications inside their unit. It started out several years ago as a way to know what contractors/vendors were on the property and to make sure they were licensed and insured to mainly protect any work or transporting of materials on common property. This policy was written with guidance from our attorney to protect areas within a unit that could affect neighbors and touch common areas – such as main water pipes, electrical, etc.

Some owners are protesting some of the approval procedures as being invasive – why can’t they hire an unlicensed, uninsured worker to save money? Some general questions:-do other association have approval rights? What constitutes the need for an approval? Do they require all vendors on the property – for association as well as owners – to be licensed and insured? What level of insurance? Same insurance for owners work as association? If the board doesn’t monitor inside unit work, how do they protect the common grounds insurance wise?

ANSWER

Besides the fact that the law requires certain trades to be licensed in order to contract to provide services, the association has the right to require that all vendors or trades on the property are properly licensed as the association can be at risk if an unlicensed or uninsured vendor is injured on the property. In order to determine which trades require a license, you should contact the Contractor Certification office in your county.

***

(1-6-16)

QUESTION

Our condo Board has for several years been giving owners, who volunteer to do work projects, gift certificates for their "services." Only recently has this practice been discovered. There has never been any disclosure or accounting by the Board of the number of gift certificates or amounts given to certain owners (some of who are Board members or their spouses). Nothing is reflected in our annual budget. The property management firm had to have known about this activity. While I believe the association gets good value for such volunteer services, I have major concerns regarding that owners were not advised of this practice. Is such practice allowable?

ANSWER

Association Maintenance Assessment funds may only be spent on common expenses of the Association as defined in The Florida Condominium Act and the governing documents. The Act states in part:

718.115Common 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.

Therefore, if the governing documents do not specifically allow the purchase of gift certificates, the Association is not authorized to purchase gift certificates. It would be advisable to suggest the Association get a legal opinion from its counsel to determine if this practice is in fact in violation of the governing documents.

QUESTION

Thank you for your website and for providing your advice. Recently, the board had selective owners fill out a survey to see who wanted to paint the building. I never received that survey and several others never did as well. As an owner, am I allowed to see the names of those who filled out that survey?

ANSWER

As an owner you can make a request to review the official records of the Association. The survey, if it was provided by the Association, would be considered an official record that you would be able to view.

QUESTION

If the association requires 5 board members and only 5 sign up to run for the board, they are automatically on the board without election. Is that true? If it is true, can the existing president allow a unit owner to be added to the list and remove one of the 5. Please email me with the answer, our annual meeting is coming up soon and I would like to make sure that it is done right.

ANSWER

In a condominium, a unit owner must submit his or her intent to run for the board 40 days before the election. If, at that time, there are five open seats and five members running, an election is not required and the five members will be seated on the board on the date the election would have been held. A president does not have the authority to remove the name of a member who timely filed to run for the board nor does the president have the authority to substitute another name prior to the election. If one of the members that submitted their name to run for the board withdraws his or her name before the election, then the new board, when seated would usually have the authority to appoint a member provided the bylaws do not provide otherwise.

 

***

(12-23-15)

QUESTION

I was looking on line for some information when I came across you great website. I have a question I was hoping you could answer. We are community of 14 individual Associations, each with their own set of Condo Docs, some almost identical, and some very similar with a few differences. The property was developed in the 1980s, by the same developer. There is a master association; it controls the roads, security, lighting etc, but not any of the common property of the individual associations. The 14 Association Declarations makes no reference to FS718. Their bylaws do make reference to Fs718, but some may say as amended from time to time and some may not. I wondered if you could tell me if the Declaration does not reference Fs718, is the Association bound to comply with FS718 and or any changes that were enacted to Fs718 since the recording of the Declaration. (By the way, we would like to be bound by Fs718; we should want to make sure we are.)Many thanks in advance and Happy Holidays.

ANSWER

The Association, as a condominium, is subject to Florida Statute 718, except if the governing documents do not specifically say pursuant to FL STAT 718 as may be amended from time to time an argument can be made that certain provisions of 718 may not apply to your association. It is imperative for this reason that you association work with its attorney to review and update the governing documents to bring them current with the changes to law over the years.

QUESTION

Our President of our HOA just handed down her position to another board member saying she can’t do it any longer. Shouldn’t this be voted on by the condo owners?

ANSWER

It depends on your bylaws and how they are written - usually the board selects its officers from among the directors that are elected by the membership. The president is usually elected by the membership as a director and then elected as president by the board. If she is no longer able to serve as president, the board usually has the power to appoint a member to fulfill her term and / or to elect a new president.

QUESTION

Can a husband and wife serve on a HOA Board together if it is not addressed in the governing documents?

ANSWER

Yes, a husband and wife can both serve on the board if there was not sufficient interest from the membership to run for the board and there is not an election because there were an equal number or less of candidates for the available positions OR if they own two or more units.

***

(12-9-16)

QUESTION

Can the BOD give personal information to a non-board member like who is behind on dues or fees?

ANSWER

Every owner has the right to access the official records of the Association. This would include the accounting records for the individual unit owners.

QUESTION

I’m a condo owner in Orlando Florida. Recently, our Board had a budget workshop wherein they were diligent in making sure our fees would not be raised in 2016. When the budget was sent out there were additions and changes to the budget that they didn’t make, as well as many errors. Our manager did this. We will be voting on fully or partial funding of the budget on December 9th. If the Board is not successful in changing these numbers before the meeting, can we as homeowners reject the budget. If this budget is voted in, then the monthly amount will be raised $15, something they were trying to avoid. Does the manager have the right to change figures on the budget after the Board held the workshop and told her what amounts to use. Is this grounds for dismissal?

ANSWER

The manager serves at the pleasure of the Board. The budget is usually approved by the board at a meeting of the board not the membership. Therefore the board will have the authority to amend the budget as presented and to ratify the amended budget. The board does not have to send out another proposed budget before voting – the purpose of the meeting is to discuss the proposed budget and to ratify it, even if the board makes changes.

QUESTION

A member of our Board is pressing to change the material alteration vote to a "limited super or simple majority" where the votes counted are limited to those of individuals participating in the vote and he wants 51% as the threshold. Another board member has argued that because our declaration sets the quorum at 51%, this limited vote would set up a situation where buildings could be altered with a 26% vote. Is all this legal? I can’t find anything in the 718 about limited and super majority.

ANSWER

The vote to change the quorum or the percentage required to approve a material alteration usually requires a vote by the members not merely the board. The ability to conduct business as a board is often thwarted by the lack of involvement of the entire membership. It is important to note that if a vote is based on the percentages that attend provided there is a quorum that method merely sets the minimum for approval. If an issue is controversial you can be assured that the membership will show up in record numbers to voice an opinion. Therefore – if 100% of the membership attends the meeting 51% will make the decision.

 

***

(11-25-15)

QUESTION

If an owner provides his email address to the association to meet its notice requirements, is that email address considered to be an official record and available to any owner upon request? FS 718.111.(12)(c)5. L.K.

 

ANSWER

Yes, an email address provided for notice requirements is part if the official records and is available to an owner that makes an official records request.

 

QUESTION

Our condo is in the process of adopting our budget. The president of the board has improperly posted notice for budget approval without sending each owner a copy of the proposed budget. While the notice is posted in common areas, we have many non-resident owners that would not see the posting. Further, our by-laws require 30 days advance notice vs. the 14 days’ notice cited in Florida 718.

First: Can the President be removed for knowingly violating the law in adopting the budget? What is the board’s recourse for the president’s actions?

 

ANSWER

The President serves at the pleasure of the board and the board could vote to remove this member as president, although he or she would still remain on the board as a director. To remove the member from the board would require a vote of a majority of the members unless the president is more than 90 days delinquent in the payment of a monetary obligation. The process to remove a director from the board is called a recall. Recalls are regulated by the Division of Condominiums and are to be completed in accordance with Administrative Rule 61B-50.105(2). More information on the specific requirements for conducting a recall can be found at the Divisions Website http://www.myfloridalicense.com/dbpr/lsc/condominiums.html

 

QUESTION

Second: Which takes precedence, the by-laws or Florida 718?

 

ANSWER

The law takes precedence over the governing documents, unless the law clearly state "unless the governing documents provide otherwise." I have included the requirements in the law as outlined below:

 

TYPE OF MEETING and

CONDO / PURSUANT TO FL STAT 718

 

Board meeting

48 hours posted (or pursuant to documents) with agenda.

 

Budget meeting

14 days mailed (along with a copy of the proposed budget) and posted, unless documents require a longer time period.

 

Annual meeting

60 days for first notice; 14 days for second notice, mailed, delivered or electronically transmitted and posted.

 

Board meeting to levy a special assessment

14 days mailed and posted must also include statement that assessments will be considered and the nature, estimated cost and description of the purpose of such assessment in the meeting notice (14 days applies to meetings to establish the insurance deductible as well).

 

Board meeting to adopt rules regarding unit use

14 days mailed and posted

 

Member meeting (other)

Pursuant to bylaws (usually at least 14 days mailed, delivered or electronically transmitted).

 

Committee meeting

Committees that take final action on behalf of the board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance, and the meetings must be open to the unit owners.

Committees that DO NOT take final action on behalf of the board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance, and the meetings must be open to the unit owners, UNLESS the bylaws provide otherwise.

Meetings with the Association attorney

Must be noticed 48 hours in advance, but are not open to unit owners when the Association’s attorney is present and the meeting is held for the purpose of seeking or rendering legal advice with respect to proposed or pending litigation.

Meetings regarding Personnel Matters

Must be noticed 48 hours in advance, but are not required to be open to unit owners when the meeting is held for the purpose of discussing personnel matters.

 

***

(11-11-15)

QUESTION

I am the treasurer for an art deco building in south beach. We have done extensive repair of the building and the project is coming to an end with the painting of the building. All has been approved and assessed. However, we just found out that we can change the color of the building to be more art deco like. Do we need 75% vote to change the color of the building? The painting has been approved but color was never discussed before.

 

ANSWER

A change in the color scheme is a material alteration that may or may not require a vote of the members. A review of the Declaration is required to determine if it requires a vote of the members to approve a material alteration. If the governing documents are silent a material alteration would require 75% approval by the owners pursuant to FL Statute 718. 113.

 

QUESTION

My Association has routinely billed attorney fees to individual owners. These fees are for responding to questions on remodeling, writing initial warning letters to owners for alleged violations, phone calls to and from board members, phone calls from owners (after the owners were told to contact the atty. and warned not to contact the board or mgmt. company) and other what appears to be routine matters. There is no specific language in the condo documents outside the normal language for collection on assessments or by court action. This is all done automatically without a board vote or any due process right to question or appeal. It is also done without any notice to the owners, it simply appears on their quarterly bill. When asked about where this authority comes from, owners are told the condo documents, however the association refuses to provide any specific location. The management company and board refer any question to the board’s attorney who, of course, then generates another bill which is passed onto the owner. In reviewing our condo documents and Florida statues I can find nothing that addresses this issue. Is this legal?

 

ANSWER

The authority that a condominium has is granted it either via the law or its governing documents. The law does not grant the association the authority to pass through attorney fees except for the collection of a debt or at the conclusion of a lawsuit. Often a declaration gives a condominium the authority to charge a unit owner for legal fees in advance of a lawsuit. For example when a violation letter is ignored and the matter is referred to the association attorney for action an association may have the authority to charge the owner for the legal fees. . It would be very unusual for a declaration to grant the association the authority to pass through routine operations of the association to a unit owner merely because the owner makes an inquiry of the board. Very often when unit owners are aggrieved – such as this – the best recourse is to run for the board and institute effective changes so that the unit owners can respectfully cohabitate without intrusive actions by the board.

 

***

(10-28-15)

QUESTION

I live in a 134 unit comprised of 2 buildings in Florida. There are 32 2-bedroom units and 102 1- bedroom units. At the time when declarations and by-laws were filed, it was determined that both 1 and 2 bedroom units would pay the same monthly dues. There is a movement afoot to change the required docs so that the 2 bedrooms pay mores dues. What is the percentage of the vote required to change the document? Is it 75% or 100% (because it deals with common expenses). The documents also state that each unit owns 1/134 of the common elements.

 

ANSWER

Pursuant to Florida Statutes Section 718.110 (4), 100% of the unit owners must approve a change in the proportionate share of assessments. Therefore charging the two bedroom units a greater share than the one bedroom units is not likely to be approved.

 

QUESTION

Our condo documents state that a majority of members in person or by proxy is required to pass a material alteration. I just read that the Florida statutes require 75%, unless a higher percentage is required in our documents. I thought I read somewhere that condo documents could require a higher percentage but not a lower amount is this correct? Question: Is our percentage of majority legal? Or do we need the 75%? Thank you for any help you can give me.

 

ANSWER

The Florida Statutes specifically state that the declaration shall prevail if it provides the percentage required to approve a material alteration. The statute states that if the declaration does not specifically address this issue, then the percentage required to proceed with a material alteration is 75%. Therefore, if your declaration requires the vote of a majority of the residents to approve a material alteration, the board can proceed if the affirmative vote equals a majority of the membership. I have included the specific provision that controls with an emphasis added:

718.113(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. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.

 

***

(10-14-15)

QUESTION

I stumbled upon your website and truly appreciated your question and answer format.

I am president of a 151 unit condominium association on the SW coast of Florida and have several questions that I cannot find a good answer for on the web and then one other question of my own.

Our documents state that we will have 5 members of the board but we cannot get members of the community to run. At our last election we had but one member run for reelection and afterwards our president delivered his resignation as a result of selling his unit and leaving the area. We were then able to appoint another member for the remaining portion of the year. So we now have 4 members but 2 terms expire at the end of the year leaving only 2 members remaining on the board. What happens when residents will not run for the board and there are less than the needed number of Board members? I have heard rumors that the state would then take over the association. How true is this and what are the ramifications of a state take over??

ANSWER

As communities get older, this is happening more often. A quorum for a five member board, regardless of how many members are serving, is always three. Therefore as long as you have three members serving on the board you can conduct your business. In the event that you have less than three you would be unable to pass motions and conduct your business. The state will appoint a receiver to oversee the business of the condominium but that is not to any advantage. You don’t mention whether or not you have a management company, but perhaps, if you are self managed, hiring a management company would alleviate some of the difficulties of serving on the board and attract more people.

 

QUESTION

Second, is the association responsible for the maintenance of common property where contours of that property changes causing rainwater runoff to direct itself towards owners lanais causing flooding of those entities.

 

ANSWER

Yes, the association is responsible for maintaining the common areas which would include preventing the runoff from the common area from flooding the private property of the residence.

 

QUESTION

To my (and the Boards’) knowledge there does not appear to be anything disallowing private individual garage/yard sales. We have had an annual community clubhouse rummage sale which was utilized by our Social Committee as a fund-raiser. Residents would bring their items to the clubhouse to be sold by others and the Social Committee retained any and all profits.

If we are permitting the existing community clubhouse fund-raiser are we discriminating against individuals by not taking further action, as individuals have approached me and other members of the board requesting to hold their own private garage/yard sale? We discussed this at our last meeting and it was met with quite mixed emotions. As the board president, I would like to take action proposing such a happening by adding to our rules and regulations so we can control such a thing by holding only one annually on a date approved by the board.

 

ANSWER

Most municipalities have a local code that defines how many garage sales may be held per year. Often it is a maximum of two garage sales per year. Your community garage sale would fall under that regulation. The board would have the authority to restrict unit owners from having their own garage sales pursuant to the powers granted it under the Articles of Incorporation and the Declaration of Condominium.

 

QUESTION:

Also, about the fund-raiser, is it legal and if so are there any rules as to how the Social Committee is to spend their monies since this group works under the pretense of benefiting the whole community. As of now, they have a rather large sum of money on their books and are not funded by the Board through the annual budget. This is a Social Committee only and currently all parties and gatherings are charged events to cover all their costs. This Social group even solicits and requires donations at morning coffees and covered dish dinners where all the food itself is donated by members of the community when they attend.

Thank you for your help - I am anxiously awaiting your response.

 

ANSWER:

The social committee should not raise more money than they spend or they may have to pay taxes on the profit. The auditor and the attorney for the association should be consulted regarding the legal and tax consequences of the activities and finances of the social committee.

 

***

(9-30-15)

QUESTION

I serve on a condo board of 9. I was on the board the previous year and was the only board member from that board voted back in. I have noticed that I am left out of a lot of voting and decisions that are made. They typically communicate their business by email between each other. I received a couple emails as a group with prior attachments that I was originally left off of and this is how I know I am being left out. My question is: Can a board deliberately leave another board member out of the loop?? If no what action can I take? Thank You for your Time.

ANSWER

A board of directors is required to conduct its business at a properly noticed board meeting. To circumvent this requirement by discussing and voting on matters via email is in violation of 718.112. This email communication could be considered a meeting without proper notice to the members. Perhaps you can put the board on notice that they are in violation of the intent of 718 by conducting business of the association vial email instead of at a duly noticed meeting. If the problem persists you may have to refer the matter to the association attorney.

QUESTION

Our bylaws state that we are to hold our annual meet on January 20 at 10:00 am. Our Secretary/Treasurer has a conflict with that date. What step need to be taken to change the date to Feb. 1, 2016?

ANSWER

There are arbitration decisions that are directly on point. Unless or until you modify your bylaws, you are obligated to conduct the meeting on January 20, 2016. Perhaps the Secretary could attend by telephone. Furthermore, it is important to note that the annual meeting is a meeting of the members – not the board – therefore it is a quorum of the entire membership that is required in order to conduct official business – not merely a quorum of the board.

 

***

(9-16-15)

QUESTION

I am on the Board for a 64 unit complex. We have 33 year old limited common element decks that have been deemed unsafe by an engineering firm. The cost to replace a deck is $13,000. I believe this is a maintenance issue and the Board of Directors can make a special assessment to have the decks replaced. Other Board members want to have the owners vote. Our Declaration requires a 2/3’s vote by owners only if it is a Capital Improvement. Since we are not changing the configuration of the decks, using different materials, or adding any new features, it is not a Capital Improvement and does not require a vote. If we take a vote and the owners vote not to replace the decks, does this relieve the Board of their fiduciary duty of maintaining the limited common element decks?

ANSWER

Without reviewing your governing documents - which would be required to render a binding opinion – it appears that the repair is necessary and therefore does not fall under the definition of a capital improvement requiring the vote of the owners. The board has a fiduciary to maintain the common elements. If the repair requires a special assessment there may be some additional requirements under your governing documents. It would be prudent of the board to seek a legal opinion from its general counsel prior to proceeding with this project.

QUESTION

I am the president of our condo association and our board is working on the budget for next year. We have been meeting for the past 8 weeks and we are supposed to finalize the budget this Tuesday [Sept.8, 2015]; however, we cannot all agree on the numbers. Two board members feel we have a surplus, while two feel we have a deficit, and the other member states she is confused between the two scenarios. Is it possible for me as president to make a decision to hold off on finalizing the budget on the date we had previously stated on the posted notice to the residents? I would like to suggest we still meet to express our concerns to the residents and to further discuss the option of turning our budget over to a professional [perhaps a CPA] and then make a decision at a later date. Would this be possible?

ANSWER

My concern is that a volunteer board is proceeding without the advice of competent professionals – such as a CPA. Without having more information as to the number of units and the amount of your annual budget, it is never prudent for board members to put themselves in a position of personal liability under the premise of "saving" money and not hiring a CPA or an attorney and in fact it may be required under the law. Florida Statute 718.111 requires the following levels of reporting:

(a) An association that meets the criteria of this paragraph shall prepare a complete set of financial statements in accordance with generally accepted accounting principles. The financial statements must be based upon the association’s total annual revenues, as follows:

1. An association with total annual revenues of $150,000 or more, but less than $300,000, shall prepare compiled financial statements.

2. An association with total annual revenues of at least $300,000, but less than $500,000, shall prepare reviewed financial statements.

3. An association with total annual revenues of $500,000 or more shall prepare audited financial statements.

(b)1. An association with total annual revenues of less than $150,000 shall prepare a report of cash receipts and expenditures.

2. An association that operates fewer than 50 units, regardless of the association’s annual revenues, shall prepare a report of cash receipts and expenditures in lieu of financial statements required by paragraph (a).

In order to fulfill your fiduciary responsibilities – you should have a CPA review your financials and your budget to determine if in fact there is a surplus that can be used to offset next year’s budget and to fulfill the reporting requirements under the law.

 

***

(9-2-15)

QUESTION

Our condo board, who has not been properly funding reserves, now wants to replace pavers and the waterproof membrane around the pool deck, which I have no problem with. It is time. This is about a $500,000 job. But in addition they want to convert the standard pool to an edgeless with salt water chlorine generator, relocate pool equipment, relocate the shower, install water features and cabanas, install palm trees, shrubs, flowers and other grass and plants on a 40 year old deck that would require about $400,000 of deck reinforcements to carry the additional weight. Plus incorporate a garden area for people to sit around and have beer and wine which would require changing the Rules and Regs for this has never been permitted. I and others feel they have overstepped their authority and we would not need a special assessment if they did not include all the additional changes. What can we do?

Our condo docs say the Association can make changes provided they are approved by the Board. It doesn’t say the Board can make changes and 718.113(2)(a) says that if the condo docs do not specify a procedure for making changes then 75% of the Association needs to approve the changes.

I believe Boards are supposed to operate, manage and maintain the property as is, protecting the Architectural scheme and integrity and if Owners want there to be material changes to the property it should be up to them to decide that, not a rouge Board that is pandering to a few party animals in the Building.

ANSWER

The changes you are referencing most certainly appear to be material alterations although I am not in a position to advise if they are or not.

Unless your condo doc’s give the board the authority to make a material alteration, which is what you have described, without a vote of the owners or with a specific percentage of affirmative votes by the owners, the Board is not authorized to make a material alteration without the affirmative vote of 75% of the membership.

QUESTION

Is a sitting Board member of a time share condominium permitted to electioneer by e-mail for his favored candidates while disparaging other candidates? He does this by writing a "Dear Friend" letter to all of the members just before the annual Board elections extolling his "loyal" candidates and warning against the other "untrustworthy" candidates he does not favor. May he use the condo association’s e-mail address lists to do so, some of which may be authorized by their owners to be used by this person or by the association, but many of which are not so authorized?

ANSWER

There is nothing to prevent a member from sharing his opinions with other members. In regards to the official member roster, the list is part of the official records of the association and is available to all unit owners by request. Therefore, the board member is entitled to request the list and to use the information on that list for contacting the members.

QUESTION

If a board wants to have a status review meeting with a committee prior to a regular scheduled board meeting where decisions are taken, do they by law have to post this meeting for the total community?

ANSWER

Any time a quorum of the board meets – the board is required to post the required notice. If the committee is not a decision making body, such as architectural review or a fining committee, and they are meeting with less than a quorum of the board there is not a requirement to post a notice.

 

***

(8-19-15)

QUESTION

Could you please tell me if a condo owner hires a lawyer on his own and takes our board to arbitration and the board does not have the money to pay for a lawyer can the board have a special assessment on all the condo owner to pay for the cost of a lawyer. Can we as owners opt out of the cost. Thank you.

ANSWER

A condo association pays it bills by assessing the membership to meet its expenses. Responding to a lawsuit is a common expense. Therefore the condo association has no choice but to assess the membership to pay for its defense and a member cannot opt out of contributing his or her pro-rata share.

QUESTION

Our Annual Condo Association Meeting is scheduled to be held January 2016. On the agenda will be several proposed amendments to our Declarations and Bylaws. Following our Documents, we will notify all owners of this meeting at least 14 days prior to the scheduled meeting and provide a copy of the proposed amendments and proxies for all owners not in residence. We have one owner who has been known to disrupt our meetings with comments detrimental to the Board, in particular three of the five members. He has made it clear he has a disdain for these three. He is a new owner who hasn’t experienced Condo living for any extended period of time and has very little knowledge of the contents of our documents or Florida State Statutes. We are sure he will attempt to bring to the floor amendments to the proposed Amendments we will present to the Association Membership. Can an owner have the proposed amendments be "amended" by those present? Proxies received will be cast for or against the Proposed Amendments the Board has submitted. Proxies received count towards the number of owners needed to pass or reject the proposals.

ANSWER

In order to consider an amendment – the proposed amendment must be presented to the unit owners in advance of the meeting. Therefore, a member cannot revise the amendments proposed by the board from the floor of the meeting. A member can speak to every agenda item and therefore he would have an opportunity to voice his concerns. If enough residents share his viewpoint the amendment may not pass and the discussion may lead the board to consider revising the amendment, but the members cannot vote on an amendment that has failed to be noticed to the entire membership in advance of the meeting.

 

***

(8-5-15)

QUESTION

In a town home HOA, with adequate reserves, can we install a pool heater as an improvement to the common area without jumping through the hoops of sending out letters to get a 75% approval. I am a board director and would like to get this done. Our documents allow us to make improvements to common areas.

ANSWER

If the Association is a homeowners association it can proceed to install a pool heater by board vote provided there is nothing in the governing documents to prevent the board from making this decision. See next question and answer if you are a condominium.

QUESTION

My mother owns a condo in Broward County. Last year she had to replace all her windows with impact glass windows to ensure the condo could get a discount on their insurance. Now she is being told that she has to replace some of those new windows with a sliding glass door leading out onto the balcony. I believe only one resident has that configuration now and they did that illegally some years ago. My mother used to be on the condo board and says that a change like this should require 100% of the owner’s agreement. Can you please tell me if this is correct, or if instead, it requires a lesser percentage of votes to change what we consider to be the structure of the building? Thank you very much.

ANSWER

If the Association is a condominium, pursuant to Florida Statute 718.113 a vote of the unit owners may be required. Florida Statute 718.113 provides that a material alteration or substantial addition to the common elements must comply with the provisions in the declaration and if the declaration is silent as to a material alteration of substantial addition the affirmative vote of 75% of the residents is required. Therefore a change from the original windows to sliding glass doors more than likely would require the affirmative vote of 75% of the residents unless the declaration requires a higher percentage.

QUESTION

Recently my condo association sent out a survey to all residents (750 units) asking questions regarding sex, education level, employment status, mortgage status, and relationship status including whether or not I have a domestic partner. Is this even legal? The pretense of the survey was to question residents about improvements or additions to the various amenities (pool, tennis courts, clubs, etc.) available in the community.

ANSWER

There is nothing to prevent the association from conducting a survey of the residents just as there is nothing to require that you answer such a survey unless there is something in the declaration that requires you provide the association information. Very often governing documents do require the unit owners to provide the association with the name of the bank that holds the mortgage on the unit or to provide proof of insurance.

QUESTION:

Can a condo board director decline a nomination to serve as a board officer?

ANSWER:

A director is not required to serve as an officer of a corporation unless they want to accept that responsibility.

 

***

(7-22-15)

QUESTION

I’m president of a condominium board. At a recent board meeting I mentioned that I want to replace our Treasurer with another board member who I felt strongly was more suited to the position. The existing treasurer was not at this meeting (he had left Florida). I proposed a present member, to whom I spoke to before the meeting, and he accepted the position. I told the board why I came to this conclusion and they nodded their understanding without much discussion.

I felt that as President I had this authority. Did I?

ANSWER

The president of a condominium, as CEO of the corporation usually has as much authority as the board allows him or her to exercise. Robert’s Rules are often cited when determining if a vote at a meeting was conducted with the proper parliamentary procedure. Most board members and managers are not aware that Robert’s Rules recognizes the problem of applying formal parliamentary rules to board meetings. Robert’s Rules specifically provides that in a board meeting where there are not more than a dozen board members present, some of the formality that is necessary in a large assembly can be 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.

If the board did not object to your recommendation it was approved unless or until the same matter is discussed as an agenda item at a subsequent duly noticed board meeting.

QUESTION

I own a condo unit that I’m trying to sell, and have a pending sale about to fall thru. The buyer’s lender discovered a pending lawsuit (some sort of breach of contract with a 3rd party) against the Condo Association. This lawsuit was not disclosed to any of the unit owners, and is being defended by the association’s insurance company. The problem I’m having, is that none of the actual parties involved with the suit will disclose the dollar amount being sought. They are all citing lawyer/client confidentiality. The lender of the potential buyer is thus not approving the loan without knowing the amount, whether the insurance company will cover the amount in the event the lawsuit is judged in favor of the 3rd party, and whether the association’s reserves will cover any damages in the event of a loss. What rights do I have as a unit owner to successfully obtain the "confidential" information so I can sell my unit?

ANSWER

Every Condominium is required to provide the answers to specific Frequently Asked Questions to every prospective purchaser. One question in particular could alleviate your buyers concerns. Ask the condominium to comply with 61B-17.001, F.A.C. The condominium is required to provide you with the answers to all of the required questions including the following: "Is the condominium association or other mandatory membership association involved in any court cases in which it may face liability in excess of $100,000? If so, identify each such case." While the strategy the association is contemplating in defending the lawsuit may be protected, the actual pleadings can be obtained from the clerk of court. Reviewing these documents should give the lender enough information to determine if the lawsuit is going to prevent it from approving the loan.

 

***

(7-8-15)

QUESTION

I am very happy to have discovered your website. I am a homeowner in Miami Beach. I am trying to stop a project my Condo Board wants to do in violation of our condo’s own bylaws which require a 75% or more majority vote from us the unit owners for approval. The project they want to do is not a normal maintenance item that does not require our vote. It’s a total destruction of our current cement balconies and its complete reconstruction with glass railings. Our condo bylaws clearly state that this type of project falls under "Capital additions, alterations or improvements" and require our vote as noted above.

This July 7th the Miami Beach Design Review Board is conducting a meeting to give its decision on this project, where I explain why this project should not proceed. I also plan to speak before them about this issue. Your advice is invaluable for me. How can I stop this project from going forward based on the fact that it is in direct violation of our condo’s bylaws?

Thank you for your consideration.

ANSWER

Perhaps your board is unaware of the requirements of the governing documents and the law which usually necessitates that a material alteration requires the vote of the membership. The DRB members may or may not understand that this change requires a vote of the membership and if it does it could make the vote of the members a condition of the approval. In the event that this matter is not decided by the membership, you could file an action for non-binding arbitration with the Division of Florida Condominiums. Pursuant to its website, the Division participates in these types of disputes because in 1991, the Florida Legislature adopted a law requiring mandatory non-binding arbitration of certain types of disputes before filing the dispute in the courts. The objective of the program is to provide a just, speedy and inexpensive alternative to litigation in the courts. If a party does not appeal the arbitration final order within 30 days from the date of the order, the final order becomes binding on the parties. Section 718.1255, Florida Statutes define disputes eligible for arbitration as any disagreement between two or more parties and the authority of the board of directors or the association’s governing document. An eligible dispute for arbitration requires any owner to take or not to take any action involving that owner’s unit or the appurtenances thereto, or involving the alteration or addition to a common area or element of the condominium property.

Also required to be arbitrated before filing an action in court are disputes involving the failure of a governing body, when required by law or an association’s document to properly conduct elections, give adequate notice of meetings or other actions, properly conduct meetings, and allow inspection of books and records.

Disputes not eligible for arbitration include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment; the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

 

***

(6-24-15)

QUESTION

Our documents state that if a unit owner replaces carpet with tiles they are required to put in an underlayment to deaden the sound. The board passed a ruling that unit owners living in downstairs unit do not have to put an underlayment, but the upstairs units must. I think this is discriminating against those living upstairs. My question is can the board do this?

ANSWER

If the Board has a rule that the underlayment must be installed under tile, and the board has the right to enact rules without a vote of the members, the board could vote to change the rule to permit units on the first floor to install tile without an underlayment. If the Board is going to consider such a rule change it would be required to provide 14 days’ notice of the meeting where it will be discussed. If the Declaration of Condominium requires underlayment under tile – the board is unable to change such without the required vote of the members. The underlayment is required to prevent the sound from walking on the tile to be heard in the unit below. Since there are not any units below the first floor – it may be reasonable for the board to vote to permit those units to forego the underlayment.

QUESTION

Hello ... I own a condo unit that I’m trying to sell, and have a pending sale about to fall thru. The buyer’s lender discovered a pending lawsuit (some sort of breach of contract with a 3rd party) against the Condo Association. This lawsuit was not disclosed to any of the unit owners, and is being defended by the association’s insurance company. The problem I’m having is that none of the actual parties involved with the suit will disclose the dollar amount being sought. They are all citing lawyer/client confidentiality. The lender of the potential buyer is thus not approving the loan without knowing the amount, whether the insurance company will cover the amount in the event the lawsuit is judged in favor of the 3rd party, and whether the association’s reserves will cover any damages in the event of a loss. What rights do I have as a unit owner to successfully obtain the "confidential" information so I can sell my unit? Thank you.

ANSWER

The association should be able to provide sufficient information, without violating attorney client privilege, to satisfy the lender. In fact, every condominium is required to provide answers for the benefit of prospective purchasers to a series of questions referred to as "Frequently Asked Questions." One of the questions is "Is the condominium association or other mandatory membership association involved in any court cases in which it may face liability in excess of $100,000? If so, identify each such case." Provide the lender with the condominiums answers to the frequently asked questions to see if that satisfies the lenders concerns. If the condominium is not in compliance with providing this document, you could bring it to their attention that it is required. The form is available on the Division of Condominiums website.

http://www.myfloridalicense.com/dbpr/lsc/forms/DBPRFormCO6000-4eff122302.pdf

 

***

(6-10-15)

QUESTION

Can the Association’s attorney block or place any unit owner’s email address in the Spam mode so he does not receive the email? The email questioned actions by the board and we sent it to him as the question was related to the Association matters for which the unit owners need his clarification? Can he do that? We pay his salary, this is a Miami Condo with 448 units with a Budget of approx. 1.6 Millions USD annually, we are paying him over $100k yearly for his services. Is it meant that we the property owners can’t engage our attorney for specific legal advice?

ANSWER

The association attorney represents the corporation, not the board or the unit owners. The association attorney serves at the pleasure of the Board and the board decides who it will authorize to communicate with the attorney. The unit owners are not permitted access to the association attorney unless the board authorizes such communication. The association attorney is under no obligation to communicate with unit owners and should not do so unless authorized by the board. If you have an issue of concern that requires legal counsel you will have to pursue this as an individual.

QUESTION

Each year, for many years, our condo unit owners have voted to waive funding the reserves. This occurs because when the proposed budget is sent out in advance of the annual meeting, the Board of Directors provides a dollar figure of what the monthly maintenance payment would be if full funding of the reserves were to be included and, comparatively, what it would be if the reserve funding were waived. There is considerable difference and many unit owners may choose to vote for the lesser figure. However the board each year states in the letter wording that the Board URGES the unit owners to vote for waiving the funding of the reserves. Suddenly however, there are meetings scheduled to discuss how the Association is going to make up for a huge reserve deficiency. What right does the Board have to URGE a vote one way or another especially on such a critical issue? If there is a major assessment levied to make up this deficiency the people who lived here for years but have since moved or passed away enjoyed a reduced monthly assessment but those who bought in the past few years are going to have to make up for those reduced fees in the form of a new lump sum assessment. That seems totally unfair and it’s all because the Board URGED former owners to not save for a rainy day. Would greatly appreciate your opinion on this. Thank you ... Baffled in Boynton.

ANSWER

The residents have to consider the vote to waive reserves regardless of whether the board urges them to do so. If you feel strongly about this you can also urge the residents to vote to fund the reserves. As long as there is such a mechanism that permits a condominium association to waive funding the reserves for the statutory reserves, the residents will have the option to vote to waive the funding.

 

***

(5-27-15)

QUESTION

I’m the President of a Condo Association and I’m fairly new to this so please bear with me. I have a couple of questions.

#1 Can any other board member besides the president or vice president sign a contract? Although we vote on matters, our Treasurer and Secretary are trying to do things on their own without all the facts being presented and only notify the rest of us when it’s all set and done.

#2 If several board members are in violation with statues and by-laws (voting by email, altering meeting minutes, etc), what are the consequences? How can they be removed from the board? As president what can I do about it?

#3 During our Annual meeting we put our nominations for the board, a couple of days later we met and elected the new board. Originally one of the board members did not put in for the nomination and took her mother’s place when we elected the new board. Was that legal? She asked and we said okay, but we had no idea if it was allowed or not?

Thank you !

ANSWER

Pursuant to Florida Statures 718, decisions are made in a condominium association at board meetings by a vote of the majority of the Board. A board member has no authority to act on his or her own. A board member cannot make unilateral decisions outside of a meeting. There is a provision in the law for a board to conduct business by written consent in lieu of a meeting – but to ratify an action by written consent outside of a meeting requires an affirmative vote by 100% of the board.

If a board member is more than 90 days delinquent in paying a monetary obligation to the association he or she is deemed to have abandoned their position and is therefore no longer a board member. Absent such, the only way to remove a board member is by recall which would require the membership to vote remove the member pursuant to the requirements that can be found on the Division of Condominiums website.

Your annual meeting and election must be conducted pursuant to the process outlined in Chapters 61B-15 through 24, 45 and 50, Florida Administrative Code and Florida Statutes, Section 718. The process requires that all candidates submit an intent to run. If there are less candidates than positions on the board an election would not be necessary- and the new board could appoint a member to fill a vacancy.

 

***

(5-13-15)

QUESTION

We live in a 24 unit condo group in Venice, Fl. We have a Bylaw that clearly states that owners can have pets limited to typical domestic animals and they must be well behaved and under control and be of a certain size and weight. The Bylaw says it is up to the discretion of the Board which pets are well behaved. There is a rule that was passed two years ago by the Board that we can only have 1 animal. I purchased the unit after that rule was in place. Both my dogs meet every stipulation of the Bybaws but no one from the Board has ever asked to meet either one. I am no longer able to leave one with my sister nearby so I have a problem. I recently was voted on the Board and have had a good look at the Bylaws and the rules and regs. and have discovered several conflicts between what is written in the Bylaws and what has become a rule. Does a bylaw supersede a rule and what do you do when they conflict. We also have a blanket Bylaw that states condo owners will follow all rules and regs.? Would really appreciate your opinion on this matter before I bring it to the Board. Thanks

ANSWER

First – your reference to the Bylaws is probably incorrect – the provision you mention is more likely located in the Declaration of Condominium. Next – as it relates to your association, you would need to engage the association attorney for specific legal advice. In general - a rule enacted by the Board cannot modify a provision that has greater authority because it is in the Bylaws or the Declaration. It is important to understand the hierarchy of governing authority for community associations. They are, in order of greatest authority to least authority, 1) Federal Law, 2) State Law, 3) Local Ordinances, 4) Declaration of Condominium (or Covenants for a homeowners association), 5) Articles of Incorporation, 6) Bylaws, 7) Rules and Regulations and 8) Robert’s Rules of Order. An association cannot amend its governing documents if the amendment will conflict with a provision or a law that has a higher authority. For example, a rule or regulation enacted by the Board cannot attempt to modify a provision in the Declaration, unless the Declaration has a provision permitting such a modification by a rule. If your Declaration states that an owner can have pets it is unlikely a rule could be enacted limiting an owner to one pet. If the intent was to allow one pet – the word would not be plural. Perhaps the Declaration has a provision that the Board can enact rules – and that would be acceptable – as long as the rule did not change or modify the Declaration. Another good example would be the ability to approve the sale or lease of a unit. Unless the Declaration provides that the Association has the right to approve the sale or lease of a unit, the board cannot institute such an approval process through a rule. However, if the Declaration authorizes the board to approve the sale or lease of a unit, the board may be within its rights to promulgate rules regarding the sale or lease of a unit.

 

***

(4-29-15)

QUESTION

Hello Ms. Konyk, first let me say thank you for taking the time to answer questions for HOA’ s that owners may have. I have a 2 part question which I’m hoping you can answer. The board has determined in the last board meeting to impose a $600 a year fee for owners to park their boat in a common boat yard. The common area does have a lift gate and utilizes a card key to open. The boat yard has been in use for the past 20 years here in Perdido Key Florida. My questions: 1. Can they assess us without a vote from the owners? 2. Are they now liable for any damages/theft that could occur to boats due to the imposed fee?

ANSWER

If your governing documents authorize the board to implement a special assessment without the vote of the owners, then you board can implement such an assessment. You question does not explain what the fee is for or if it is assessed equally amongst all of the members or just those utilizing the boat yard. Unfortunately this column cannot be utilized to answer specific questions as it relates to your governing documents. As to your question regarding liability – as you are probably aware – we live in a very litigious society. Liability is ultimately decided by one party accepting the risk or by a court of law. The Association should have its insurance policy reviewed to determine if it has sufficient coverage in the event there is an action brought against it and it is determined to be liable.

QUESTION

Can a Board make separate rules for tenants and owners including pets and use of common areas? Paul C.

ANSWER

A tenant cannot be restricted access to the common areas. An owner cannot use the common areas during time his or her unit is rented as that righ to use the common areas is transferred to the tenant. As to your question regarding pets, if the Declaration of Condominium specifies that tenants may not have pets, then the board may restrict tenants from having pets. The board cannot restrict tenants from having pets by enacting a board rule.

***

(4-15-15)

QUESTION

I recently learned that the board gave a Christmas bonus to the licensed cam each year without notifying the association that they are doing this. The bonus is $2,000 each year and the check is signed by the association president. I have also learned that the board is signing contracts for a retainer contract to a CPA to do the audit. We have had the same CPA for over a decade. There are no board meetings before the condo assn. to discuss these issues. We have about three meetings per year.

ANSWER

The Board does not have to have a meeting every time monies that are budgeted are spent. The Licensed Cam’s bonus is more than likely a budgeted expense that was approved at the same time the budget was approved. As to the audit by the CPA – the president is more than likely authorized by the board or the governing documents to take care of day to day business. The president approved the audit by the same CPA that has done the audit for the past ten years. Perhaps if the president selected a new auditor without the board of director’s being aware of such there may be a cause for concern. The law requires two meetings a year – a budget meeting and an annual meeting. Unless the governing documents provide otherwise or the board is making decisions privately that require a board vote, your association may very well be in compliance with the law.

QUESTION

Hello, I saw your web page and would like to ask if the resident application I filled out and my background/credit checks are private and if anyone is able to access my personal information. I have lived in this complex for three years as a renter. I just want to know if Board Members or anyone else for that matter have access to my information. Do all applications have to remain behind lock and key? I would think the Property Manager and Secretary have access. This worries me as the office is left empty often and we have gone through four Property Managers in the last year I appreciate your response. Lisa B. Florida

ANSWER

The information to approve a sale or a rental is not part of the official records of the Association. It is not necessary for the Association to retain the information after the sale or rental is approved and the information is confidential and should be protected.

 

***

(4-1-15)

QUESTION

Our Condo president owns two units in here and has now moved off property and will be renting the unit he lived in. Can he still remain president??

ANSWER

Yes he can still remain president. All members are eligible for service on the board and there is nothing in Florida law to require that residency is a requirement to remain on the board.

QUESTION

Our condo board approved a cost of living increase to be effective each following year, for the maintenance person. Some owners think this needs to be approved by every future board each year, so can this decision by previous board be applied to future years?

ANSWER

As long as there is not a contractual obligation to the employee to provide cost of living raises, future boards can change such a policy. Just as the current board voted to approve cost of living raises, the next board could vote to stop issuing future cost of living raises.

QUESTION

Once an Annual Condo Association Meeting has been scheduled, what procedures must be followed in order to change the date? We would like the meeting to be held one week later than the scheduled date. Your prompt attention is appreciated.

ANSWER

The board would have to notify the members of the new date of the meeting with the same formality that was required to notify them of the first scheduled meeting, provided that the documents do not require the meeting to be held on a specific date.

***

(3-18-15)

QUESTION

We have a Director in our condo association who has sold his unit and will close on it in early April. He intends to resign as of 3/31. He has several "old business" agenda items that personally involve him which he most likely will bring up at his last BOD meeting in March. Does he have to recuse himself in any vote or discussion on these items?

ANSWER

Not sure what you mean by "personally involve him" . . . in the event he will realize a personal gain from a board decision he must recuse himself. If the items in question are merely items that he was personally involved in there is not a requirement for him to recuse himself. For example, the president should recuse himself if owns a landscaping business and now that he is no longer an owner or on the board. The board may want to vote to consider hiring his company.

QUESTION

I mailed my letter of intent to run for the condo board on the 19th of February. The management company left my name off of the ballot saying they did not receive it till the 20th of February and the cutoff was the 19th. My question is, does the postmark of my letter (which they admit is the 19th) or the date they received my mail determine the cutoff date.

ANSWER

The date your intent to be a candidate is actually received is the date that matters. In fact the post mark is proof that you did not timely submit your intent as it would be very unusual for a letter to arrive on the same day it was postmarked. It is up to the candidate to make sure his or her intent is received on time.

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(3-4-15)

QUESTION

As a unit owner can I request the emails of other unit owners if they have asked to receive info from the office via email?

ANSWER

If a member elects to receive notices via email, his or her email becomes part of the official records which is subject to inspection by a member.

QUESTION

I am the President of a Condo Association. We have 8 membership meetings in addition to our annual owners meeting. In addition, as board members we meet several days in advance of each meeting to discuss what will be placed on the agenda. We do not conduct condo business or take any action or votes on any subject. All such meetings are posted as required in case a unit owner wants to attend and request something be placed on the agenda for the regular meeting of the BOD. My question is....do we to take minutes of these agenda meetings when all we do is formulate the agenda for the upcoming meeting?

ANSWER

Membership meetings are the meetings where the members can make motions and or vote on the business that is before the community – such as the annual or special members meetings. Board meetings are the meetings where the board meets to make decisions and vote on things that come before the board. The only things that should be contained in corporate minutes is the business that is conducted at the meeting. Business is conducted in the form of motions. Therefore the minutes should only contain the motions that are considered and the results of the vote on those motions. If the board meets in advance of the board meeting to set the agenda – it is not necessary to take minutes because the agenda is the record.

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(2-18-15)

QUESTION

The question is whether our condo association, the Board of Directors has the direct authority to purchase units at foreclosure sales. The wording in FS 718 and our declaration which both clearly give the ASSOCIATION the authority to acquire units at foreclosure sales, but does NOT give the Board of Directors specific authority to act. In fact, Section VIII of our By-Laws, states specifically that the Board of Directors must have the approval of the unit owners to acquire units at foreclosure auctions. This approval has never been given as there has not been a quorum present at an annual owners meeting in over 12 years.

A number of unit owners feel it would be better for the association to allow units in foreclosure to be sold, at auction, to "others" instead of the association acquiring them and they want to challenge our Board but would like an informed opinion before any further action is anticipated. Our unit owners have NO access to our Association Attorney for such questions and the BOD is very closed.

ANSWER

Let’s start with the comment at the end of your question first – a commonly misunderstood principle is the association’s attorney’s role in the association. The association attorney does not represent the unit owners. The association attorney does not represent the Board of Directors. The association attorney’s role is to represent the corporation and that role may often be in conflict with what the unit owners and sometimes even the board members expect from the attorney. The business judgment rule protects board members from personal liability if they act pursuant to advice received from counsel for the association. If the board ignores the advice of the attorney they can be held personally liable if their actions are challenged and found to be in breach of the governing documents or in breach of the law. If a unit owner or a board member feels they personally require representation, the unit owner or the board member must seek the advice of his or her own attorney.

The provisions in the law trump all of your governing documents. The provisions in your Declaration – a covenant running with the land – trump your bylaws. Your interpretation of the law is incorrect because 718.111 (9) states in pertinent part as follows: "There shall be no limitation on the association’s right to purchase a unit at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments or to take title by deed in lieu of foreclosure." No limitation means just that- no limitation.

There are two different types of foreclosures. A mortgage foreclosure is the litigation by the bank when the mortgage payments are delinquent. A lien foreclosure is the litigation by the association when the assessments are delinquent. It is not unusual for someone to confuse the two types of foreclosure. Your association is obligated to "purchase" a unit at its lien foreclosure sale if there are not any bids that exceed the indebtedness. The association places the first bid for the amount of indebtedness. If no one bids higher than that, the association is awarded certificate of title. The point of the lien foreclosure bidding process is to make sure that if anyone other than the association bids - the bid is for more than the association is owed so that the debt will be paid in full. It is more likely that your association is properly protecting the association by proceeding to foreclose its lien. It is unlikely that your association is bidding on units that bank has foreclosed.

 

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(2-4-15)

QUESTION

Hi. I live in a condo complex in Orlando. The police have been called on our neighbors many times for sound complaint’s and suspicion of domestic abuse. It keeps happening though and the police don’t seem to be able to do anything aside from swinging by and asking them if everything’s okay. These incidents occur several times a week and are both disruptive and cause concern for the possible victims safety as well as our own. I’m pretty sure the occupants are renters but I don’t know anything about the owner and the management company for the neighborhood claims she can’t do anything. Is there any action we can take through the management company or condo association to have them removed or penalized?

ANSWER

The governing documents of the association should provide the board with a remedy to resolve this situation. It may be as narrow as allowing for the eviction of the offending tenant or as broad as requiring that an owner not permit anything that may be a nuisance to others to occur on the premises. Perhaps a written request that the board look into resolving this issue through the governing documents or by legal action.

QUESTION

I stumbled onto your site and was pleased to know there is someone available to guide condo owners in a direction that will help them resolve issues.

My husband and I, as well as some other family members have purchased units in a small (24 unit) complex. We are finding the allowing of pet-friendly rentals to be causing problems. The association adopted rules about no pets being allowed in the pool area nor in grassy areas. Pets are to be taken off property to tend to their needs. Pets are also to be under positive control (held or on a leash) at all times they are outside the individual unit. We find that renters leave for the day and their pets find themselves in unfamiliar surroundings and bark all day. For owners and renters who remain on property, the noise spoils the relaxing environment.

Our documents are silent on the issue of renting to pets. The documents were prepared in 1972 and have only had one amendment which was not in regard to pets. Until 6 or 7 years ago only owners were allowed to bring their pets. When a new owner came in and acquired several units, the idea of allow pet-friendly rentals was introduced. There is no provision in the documents and there is no rule that was adopted by the Board or the owners. More than half of the current owners do not approve of pet rentals. It has been stated by one owner that the rights of the owner transfer to the renter. Since these are vacation rentals, is that the case? Since the documents are silent on this issue, there is much debate and many of us would like to know if the owner of a property that is rented for vacation (short-term) rentals can pass the right to have pets to a vacation renter. Your time and energy to respond to this question is sincerely appreciated.

ANSWER

If the governing documents have language regarding pets, the board cannot modify that language with a rule. If the governing documents are silent regarding pets the board can adopt rules regulating or prohibiting pets including restricting pets to owner occupied units. Therefore if you are correct in your analysis of the governing documents – your board can pass such a rule provided they give the unit owners 14 days’ notice of the meeting where they intend to consider this rule because it affects the use of the units.

 

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(1-21-15)

QUESTION

I live in a condo that I bought that requires one of the owners to be 55 or older. My son is 41 years old and recently moved back from Argentina and is staying with me. I added him to my title prior to submitting the occupancy paperwork, in case something happened to me that there would be no issues. He also needed to have his driver’s license updated and used my address. I submitted the paperwork with the money for a background check and it was done and sent to the Building President. The building president is known as a "condo commando". The history with him has been difficult for me. I had issues just trying to get the appointment for my HOA interview though my condo was a cash sale because this President was having some type of surgery, and kept yelling at my realtor and me on the phone. I ended up with an extension of a month before he finally screamed a name at us that we were able to contact and have an HOA interview 3 days before my extended closing of a month. I’ve been here two years now, and it has been over a month since the paperwork came back and I encountered the board president while walking my catwalk and asked him when my son would be contacted for the HOA meeting to grant him occupancy status so that he can get his ID and have access to the clubhouse. He was rude and vague. I asked him if something came up on the background check, and he said NO, (my son has a clean background check plus an excellent credit score)...but he said this that the address on his license was my address so he hasn’t decided what to do with him. This is my first condo experience. Can they deny my son living with me as I am entitled to 2 occupants as long as they are over 18? Please advise.

Thanks.

ANSWER

As long as the Association follows the same criteria when approving or denying occupancy it will be within its rights to approve or deny a potential occupant. It does not appear from what you have said that the association will have a valid reason to deny your son’s residency since you are also a resident, thereby satisfying the Fair Hosing requirement that at least one occupant must be over the age of 55 in housing for older persons.

QUESTION

Is there a way to "search" to see if you have already answered a question? The president of our board is requiring me to send my questions to the board by U.S..mail. He states that if I use his e-mail address for my questions that he will not respond to me. All the other members of our association can contact him by e-mail. What can I do about this?

ANSWER

Many of the previous questions are available on this page (scroll down). The board of directors is not required to allow residents access via email although the board is required to respond to written inquires within 30 days. A board is permitted to establish reasonable rules regulating inquiries – such as limiting the number of inquiries a resident can make in a specific a timeframe – and/or establishing the method for making inquiries – such as via certified mail.

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(1-7-15)

QUESTION

Our condo association is currently involved with a balcony concrete restoration project. The balconies are a limited common area of every unit with the association responsible for maintenance of the walls, ceiling, railings and concrete balcony cantilevers. The owner is responsible for maintaining and replacing as necessary the sliding glass doors and tracks, stationary glass panels, tile floor covering and hurricane shutters/tracks. The Declaration does not contain an "incidental damage" clause. The tile flooring and hurricane shutters/tracks were not part of the original construction of the building. The association required installation of both the flooring tile and hurricane shutters with passage of an amendment to the Declaration about ten years into the buildings life.

It appears that arbitration decisions support removal and replacement of sliding glass doors and windows as a common expense of the association. The tile flooring and hurricane shutters/tracks are improvements performed by the unit owner after building construction and their removal and replacement costs are generally a unit owner’s expense from what I have read. The big difference with our association from other cases I reviewed is that our association required the installation of the tiles and hurricane shutters. Would this perhaps require the association to cover the removal and installation of tile and shutters as a common expense in those cases where it was necessary for the association to perform its maintenance obligations?

ANSWER

Interesting question – especially considering that the Unit Owners ARE the Association and whether the Association or the owners pay – the owners pay. The association does not have a magic bucket of money – it pays for everything that it does by assessing the unit owners.

QUESTION

Hello and thank you for your help.

I have a quick question regarding the time frame for the association approval process. I have been told they require a month to review and accept my very much qualified tenants application. That of course sounds like too long for me. I just applied myself and I was approved in 3 days.

My question is if there is any law that can states that they cannot exceed 14 days or is that incorrect? I live in Florida. Thank you!

ANSWER

There is not a law that states the timeframe that an association has to approve or deny a tenant. The declaration may have language that deems the tenant approved if the association does not act with a specified time-frame. Refer to the Declaration of Condominium to determine if there is any restriction on the time the association has to respond. Many declarations do allow the association up to 30 days consider occupancy.

 

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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, P.O. Box 109, 

West Palm Beach, FL 33402, 

or you may also email your questions to  info@condonewsonline.com

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