ASK THE LAWYER


By 

Jerome F. Skrandel

I trust you know that if this problem occurred at an officer or director’s unit, they would have had the association pay for the work from the beginning. Your experience should show all the readers that you can NEVER rely on the word of any officer or director. If they are honest and trustworthy, let them acknowledge the association’s responsibility in writing and sign it.

Regardless of the fact that the roofers may have been the cause of this problem and the association may not have known anything about it, the problem was in the common elements of the condominium and the emergency situation needed immediate attention. You could not wait without risking severe damage to your unit and possibly other units. In my opinion the association should pay the reasonable charges for the plumber. If they refuse, your only recourse to compel the association to reimburse you is legal action. Here is the real stupidity of their actions. I am guessing that the plumber’s bill was around $500.00 to $750.00, or so. If this matter went to court, it could easily cost the association and its insurance carrier $10,000.00 to $20,000.00 in legal fees whether or not they win. If the association lost, they would have to pay your attorney’s fees and expenses also. But, most associations and insurance companies would rather risk such a huge loss rather than pay a very reasonable repair bill they are responsible for.

ANSWER  

Florida Statutes §718.116 is the law which applies to condominium liens and foreclosures and provides, in part:

The association has a lien on each condominium parcel to secure the payment of assessments. To be valid, a claim of lien must state the description of the condominium parcel, the name of the record owner, the name and address of the association, the amount due, and the due dates. It must be executed and acknowledged by an officer or authorized agent of the association. No such lien shall be effective longer than 1 year after the claim of lien was recorded unless, within that time, an action to enforce the lien is commenced. The 1-year period shall automatically be extended for any length of time during which the association is prevented from filing a foreclosure action by an automatic stay resulting from a bankruptcy petition filed by the parcel owner or any other person claiming an interest in the parcel. The claim of lien shall secure all unpaid assessments which are due and which may accrue subsequent to the recording of the claim of lien and prior to the entry of a certificate of title, as well as interest and all reasonable costs and attorney’s fees incurred by the association incident to the collection process. Upon payment in full, the person making the payment is entitled to a satisfaction of the lien.

By recording a Notice of Contest of Lien in the form approved by law, a unit owner or the unit owner’s agent or attorney may require the association to enforce a recorded claim of lien against his or her condominium parcel. After notice of contest of lien has been recorded, the clerk of the circuit court shall mail a copy of the recorded notice to the association by certified mail, return receipt requested, at the address shown in the claim of lien or most recent amendment to it and shall certify to the service on the face of the notice. After service, the association has 90 days in which to file an action to enforce the lien; and, if the action is not filed within the 90-day period, the lien is void. However, the 90-day period shall be extended for any length of time that the association is prevented from filing its action because of an automatic stay resulting from the filing of a bankruptcy petition by the unit owner or by any other person claiming an interest in the parcel.

The association may bring an action in its name to foreclose a lien for assessments in the manner a mortgage of real property is foreclosed and may also bring an action to recover a money judgment for the unpaid assessments without waiving any claim of lien. The association is entitled to recover its reasonable attorney’s fees incurred in either a lien foreclosure action or an action to recover a money judgment for unpaid assessments.

No foreclosure judgment may be entered until at least 30 days after the association gives written notice to the unit owner of its intention to foreclose its lien to collect the unpaid assessments. If this notice is not given at least 30 days before the foreclosure action is filed, and if the unpaid assessments, including those coming due after the claim of lien is recorded, are paid before the entry of a final judgment of foreclosure, the association shall not recover attorney’s fees or costs. The notice must be given by delivery of a copy of it to the unit owner or by certified or registered mail, return receipt requested, addressed to the unit owner at his or her last known address; and, upon such mailing, the notice shall be deemed to have been given, and the court shall proceed with the foreclosure action and may award attorney’s fees and costs as permitted by law.

The association is not required to give you a call and tell you that your payment is overdue before filing a lien. Even if you think you have a valid legal reason to avoid paying an assessment, it is better to pay now, under protest and specifically reserving your rights, and argue about it later. If you do not pay and the lien is valid you could lose your unit in a foreclosure. I do not suggest gambling with your home. Just because the gate was a poor business choice and possibly defective from the beginning does not give you the authority to refuse to pay the assessments for that item. Every association would shut down if unit owners could withhold paying part or all of the otherwise lawfully approved assessments if something did not work or if repairs would be needed.

QUESTION

The corporation which governs condominiums and homeowner’s associations is comprised of a board of directors who sets policy and officers who carry out that policy and take care of the day-to-day work of running the association.

Per the Condominium Act, §718.112 (2)(d)(8), unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy.

Corporations statute §607.0809 (1), states that whenever a vacancy occurs on a board of directors, including a vacancy resulting from an increase in the number of directors, it may be filled by the affirmative vote of a majority of the remaining directors, though less than a quorum of the board of directors, or by the shareholders, unless the articles of incorporation provide otherwise. This would apply to homeowner’s associations as well. If an association fails to fill vacancies on the board of directors sufficient to constitute a quorum, Florida Statutes §720.305(4) states that any member may apply to the circuit court for the appointment of a receiver to manage the affairs of the association. At least 30 days before applying to the circuit court, the member shall mail to the association, by certified or registered mail, and post, in a conspicuous place on the property of the community served by the association, a notice describing the intended action, giving the association 30 days to fill the vacancies. If during such time the association fails to fill a sufficient number of vacancies so that a quorum can be assembled, the member may proceed with the petition. If a receiver is appointed, the homeowners’ association shall be responsible for the salary of the receiver, court costs, attorney’s fees, and all other expenses of the receivership. The receiver has all the powers and duties of a duly constituted board of directors and shall serve until the association fills a sufficient number of vacancies on the board so that a quorum can be assembled. As you might guess, a receiver would be extremely expensive.

Unless the governing documents specifically state otherwise, in my opinion, the board can permit the exercise rooms to be used by clubs for other uses especially if it is limited to only a few days per year. While particular parts of the common elements may have certain designated uses, the board can make reasonable exceptions and permits other uses. There are no set rules about how long these "other uses" can last or how often they can occur. The only limitation would be one of reasonableness, which is something that is always on the side of the association.