ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

Last Updated 07/05/2014

***

(6-25-14)

QUESTION:

We are a condo association with stand-alone units. I am a member of the board. Recently, the Board voted to start doing background checks for sales and rentals. I expressed reservations that we needed to have guidelines as to what would disqualify a purchaser or renter. The President states that she does not want to be "limited" by guidelines. I am concerned that this could make us vulnerable to challenges of discrimination. I have asked around, and some associations have guidelines, but many do not. What is your opinion on this?

ANSWER:

Your concerns are legitimate. Just as important as a establishing consistently applied criteria, the board needs to be aware that if you do not have the authority to approve or deny sales or leases granted by the Declaration of Condominium, you do not have the authority to approve or deny sales or leases or to request background checks. You must have the authority in the Declaration – not in a board passed rule - because the Declaration is a covenant running with the land and it usually has language that clearly states the conveyances must be in accordance with the provisions of the Declaration. You must have established criteria that you consistently follow when approving or denying the lease or sale of a unit. Although you are not required to specify the reason for the denial, if the board’s decision not to approve a sale or lease is challenged you need to be prepared to present documentation of the criteria that the board considers to establish that you are not engaging in selective enforcement.

QUESTION:

Grandfathering past alterations to windows and doors & enforcement going forward.

We are a small condo community with 20 units. We have a provision in our condo docs that state that no owner shall make any material alterations or substantial additions to his/her unit or in any manner change the exterior appearance of the condo without written approval of the board. Further, the board has the right to revoke or rescind any approval of an alteration previously given if it appears that the installation has had an unanticipated, adverse effect on the condo.

Over the past ten years, many owners (more than half) have added door and window decorations and hardware (knockers, numbers, holiday wreaths, etc.) without the board’s permission. This has not been an issue until now. Recently, one owner added window decals with frosted palm trees in one of his windows to block out the air conditioner units outside his window and another owner complained about it. What can/must we do given the fact that we’ve never enforced any alternations previously?

We (the board) would like to grandfather in all existing alterations but send out a reminder of the condo doc rule and begin requiring written board approval on any new changes that do not comply with our condo docs. Can we do this?

ANSWER:

A material alteration is often something requiring the vote of a percentage of the unit owners to approve. The board cannot grandfather something that is a material alteration if the governing documents require the vote of the owners. In the event the Board has failed to enforce a provision of the documents that only requires board approval, there is a mechanism in the law that can be used to reestablish enforcement of the provision going forward. In essence the board can send out a letter which identifies that the Board of Directors has reviewed how the Association has enforced the restrictions governing the Association over the last few years. The provision that the board has failed to enforce must be identified in the letter and must not be a matter requiring the votes of the owners.. In your example the Association should identify that it wants to create a clear legal path going forward for enforcement of the restrictions relating to door and window decorations requiring Board approval. To accomplish that objective, the Association must document all units that have existing door or window decorations with pictures of the existing decorations and grandfather the exact alteration as they presently exist on those units. Then the Board must enforce the restriction against door and window decorations (or the provision against making any change to the exterior of the unit) without board approval if a Unit owner is not in compliance with the governing docs.

***

(6-11-14)

QUESTION:

Does the Association have the authority to fine a Lot Owner for violating the Governing Documents and if so who imposes the fine?

ANSWER:

Yes. The Association through its Board of Directors has the authority to send violation letters and to impose fines pursuant to Florida Statutes if they have appointed a committee of at least 3 owners who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee. For condominiums, the statute is Florida Statute 718.303 and for homeowners associations the statute is Florida Statute 720.305.

The legislature, in 2011, amended the statutes to authorize associations to impose fines for failure of the owner, occupant, licensee, or invitee to comply with the governing documents or rules and regulations. Previously, the statutes required that the governing documents had to provide authority to fine. The statutes have been changed such that an association, by statute has, the authority to fine.

With regard to the procedure to impose fines, the board must appoint a committee of at least 3 owners who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee. The association must provide at least 14 days written notice and an opportunity for a hearing before the committee. If the committee, by majority vote, does not approve the fine, a fine may not be imposed. Further, while the board may not overrule the findings of the committee, the association needs to conduct a board meeting to ratify imposition of the fine. A committee process is a procedural due process check for the benefit of the person to be fined, but the board of directors actually wields the power of the association to impose the fine.

The statute provides that if the association imposes the fine, the association must provide written notice of the fine to the owner and any other person fined.

***

(5-28-14)

 

QUESTION:

I had an application submitted to a HOA with $185 fee for a background check. They denied my application and I called and sent a certified letter asking for the background report and the company that ran it. I am not getting responses to my letter or phone calls. The mgmt services are handled by a management company so I cannot contact the HOA directly. What should my next steps involve. Thank you for your help.

ANSWER:

The reports are usually only provided to the party that requested them. Your personal credit report may be obtained at no charge directly from the reporting agency if you have had adverse action taken as a result of the report, such as not being approved for a sale or a lease. You may also inquire as to which service ran the background check and request the same report if you want to challenge the information contained in the report. If you want to challenge information contained in the report you would need to make the request for the report.

***

(5-14-14)

QUESTION:

Our past condo president was found guilty of a felony for having held a loaded gun to the head of a unit owner and he received a sentence of 5 years to be served under probation.

The judge’s order also contains the following conditions:

• Resignation as president of the association

• NEVER serve as a leader on any board of directors

• Not run for office at any time.

He still has one more year to go on his period of probation. However, after our January elections, the actual president asked for owners to run for seats on different committees, and this ex-president sent in his candidacy for several committees and the actual president then appointed him to the Covenant Enforcement Committee and to the Sales & Rentals Committee, while other applicants were left out.

Since our Declaration states that it is the president who appoints committees, and that the committees will be making recommendations to the board on very serious matter, will that felon not be acting in a leader role? Should he be disqualified?

A prompt response would be appreciated, since some owners want to bring up the issue publicly at our next meeting but, knowing how angry this ex-president is, it would be a shame to start a disturbance if it is not called for.

ANSWER:

Do not confront an "angry" ex-president (or anyone for that matter) publicly at a meeting. If this person is actually on probation and your facts are correct, such service to the appointed committees may be a violation of his probation. If he is on probation, his probation officer could be consulted to make the determination.

QUESTION:

Our Florida condo association consists of 82 units. In 2013 the amount of $6,000 was spent on roof repair. This expense was taken out of the roof reserve fund without any unit owners meeting, without the owner’s majority approval.

How serious is this violation? Can Property Management Company be fired based on this violation?

ANSWER:

Unless your governing documents provide otherwise, using roof reserve funds to repair the roof does not require the vote of the owners. Using roof reserves for any other purpose would trigger the requirement for the approval of the owners.

QUESTION:

I put in an offer on an intracoastal view condo in Lantana which is one of the higher priced because of the direct view. The palm trees block entirely the view from the bedroom and in another year will block the view from the living room. It seems so simple to remove the trees. The people on floors 2, 3 are already blocked and it is a shame as their prices were premium around 6-700k. I will back out if they cannot or will not remove the trees as it is the only reason I would buy is to have direct view of intracoastal with the boats etc.

Please help as I only have 5 days to either go through or ask for my deposit back.

ANSWER:

Pursuant to FL Stat 718.113 there shall be no material alteration to the common elements or association property, except in a manner as provided in the declaration as originally recorded or as amended. Therefore, the condominium association may be prohibited from removing the trees without a vote of the unit owners if the trees are on association property, unless the declaration provides otherwise. As a non-owner you have no standing to require the removal of the trees.

***

(4-30-14)

QUESTION:

We own a unit in a condo association, in Palm Beach County Florida. We bought our unit as a short term rental (vacation rental). However, the association is requiring us (we wished we would of read the fine lines of the application as we thought it only pertained to us, the owner of the condo, not the renter) to have a background check of each of the renters that occupy our unit. Most of our renters only rent for 1-2 months at a time and they are not comfortable providing their social security numbers for a background check when they are just renting for their vacation. We have another rental property in south Walton County, Florida, and have never had to deal with this. Please advise. I truly appreciate your help.

ANSWER:

The fact that your renters are only there for one or two months does not exempt them from the rules established by the association as long as the governing documents contain the authority for the association to request that a renter supply information for a background check. You should always read all of the documents that you will be expected to comply with before you purchase. The fact that the association is actively looking into the backgrounds of short term occupants can be seen as a positive – especially for the residents of the building that are actually living in close proximity.

QUESTION:

Help! I am sure you have heard endless stories on harassment and overall uncivil behavior demonstrated by some owners in Condos. I wanted to obtain some guidance on what can be done regarding continued harassment of former Board Members by an owner that posts notices illegally in our common area bulletin boards and in-house mailboxes. This owner is now the Board President and is continuing the same actions and obstructionist tactics which led to a majority of the Board stepping down recently. This has been going on for 1 year and is impairing the enjoyment of our living environment causing unnecessary stress and hostility in the building. Is there anything that can be done to stop this? Are there any laws that protect owners and former Board members from harassment and accusatory public notices being distributed in our living environment? I am disabled and trying to live peacefully in a stress free environment but I am faced with this when I get my mail and don’t feel that it’s fair to subject anyone to unsolicited opinions of owners or one Board member on an endless mission to blow his horn.

ANSWER:

Unfortunately, you cannot control other people - you can only control your reaction to them. The situation you have described is a civil matter and the first line of defense is to ignore them – if that doesn’t work, you may have to engage an attorney to send a cease and desist letter. The letter should be sent to the association attorney if it has one, and it may be helpful to provide examples of the written correspondence.

 

***

(4-16-14)

QUESTION:

My partner and I own two properties within a deeded community in Florida. The first property purchased is in his name only after I quit claimed my interest in the property while it was in foreclosure going through a loan modification. The purpose of that quit claim was to have the ability to purchase the second property within the community that was in a short sale. Due to our understanding of the length of time it took for the lender to acknowledge the quit claim and to remove my name from the deed, the new home could not be in either name. Therefore a family member currently is named on the deed although he made no contribution to the purchase of the property, nor does he pay the mortgage. We do have a clearly defined lease purchase agreement which shows all funds paid towards the purchase of the property by myself and also stated is that all payments to the lender for the mortgage are also paid by me including taxes and insurance.

My question is; does the lease purchase agreement, as defined above, have enough legality to show me as the property owner due to the relationship between myself and the family member, and second, as such can I hold a position on the Board (having served 7 years prior while on the deed for the first residence? The Rules & Restrictions state as follows:

"…be a member of the ASSOCIATION and shall remain a member thereof as long as he is record title owner being entitled to one vote for each lot owned in the development…"

If the answer is no, is there a legal document that could be entered and filed within the County to show my ownership of the property and not of my family member who resides in another state until such time that I refinance the home and the deed reflects my name only?

The above relates only to voting privileges. There is no item in the Rules & Restrictions specifically related to holding a seat on the Board of Directors or related to ownership to hold a position, since that position is voluntary and must be voted in at the Annual Association meeting, only to voting rights. At the most recent meeting on March 20, 2014 I was nominated and voted in again as Treasurer. There were no nays or abstains in that vote.

I appreciate your response.

ANSWER:

The Florida Not-For-Profit Corporation Act simply states that directors of corporations must be natural persons at least eighteen years of age or older. They need not be residents of this state nor members of the corporation. The statute further provides that the articles or bylaws may prescribe additional qualifications for directors. The Florida Condominium Act says that "any unit owner or other eligible person" may be a candidate for the board of directors unless the person has been suspended by the State, is delinquent in the payment of a monetary obligation to the association, or the person has been convicted of a penalty and his civil rights have not been restored. Therefore, so long as a person is at least eighteen years old and not disqualified by the three eligibility criteria in the Florida Condominium Act, the person is eligible to run for the board, unless disqualified by the articles or bylaws. If the articles and bylaws are silent regarding board eligibility, then a non-unit owner would be eligible to run. If the governing documents state that only members are eligible to serve on the board you may not be eligible since membership is defined as being a "record title owner", which would be a deed that is recorded in the official records of the county where the property is located. Your lease purchase agreement would probably not qualify as evidence of your being a record title owner.

In reviewing your documents for a provision that may prohibit a non-owner from serving on the board, the rules and restrictions have the least priority in the hierarchy of governing documents. Many times unit owners are confused about the correct titles and or documents. There are three documents that are usually found in every community association, the Articles of Incorporation, the Declaration and the Bylaws. The provisions in the Declaration are covenants running with the land and these provisions have the highest authority, followed by the Articles of Incorporation which established the corporation, the Bylaws which contain the provisions for conducting the business of the board, then the Rules. The Bylaws usually contain the provisions that identify who can serve on the Board. As long as there is not a conflicting provision in the Articles or the Declaration, you can rely on the provisions of the Bylaws. In the event there is a conflicting provision in the document that has a higher priority you will be required to follow that provision.

QUESTION:

In 2002 my wife and I decided to look for a new townhouse in a community that had no pet restrictions. My love for German Shepherds was known to all of my friends. It was time for me to fulfill that love. We began looking for a place and our number one criteria was no pet restrictions. We found a place, bought it, and immediately got a German shepherd puppy, Xena. To my surprise 6 months later my wife said let’s get a second German Shepherd puppy, and I was all for it - thus, Zoey joined our little pack. The next year I felt the dogs needed more space so we bought a house where they could run about in a fenced-in yard. We did not sell our townhouse but rented it to my brother-in-law for 8 years. During that time the board got a 30-pound weight restriction passed, and passed another rule restricting the number of pets permitted to each owner to a single pet.

In 2011 my wife and I decided it was time to sell the house and move back to our townhouse with our 2 German Shepherds. The association said there would be no problem because the animals preceded the restrictions. So we moved back. In late 2013 both dogs developed terminal cancers, underwent emergency surgeries, and then one dog passed away in December 2013 and my other "girl" passed away in March 2013. Our townhouse is now so painfully empty that we want to get another dog. However, I still want a German Shepherd. After walking 2 big German Shepherds around the neighborhood I cannot envision now having to walk a 10-pound FiFi..

My question is this: since we purchased this townhouse in 2002 specifically because it had no pet restriction, was the grandfathering of our German Shepherds really a grandfathering of my right to have a German Shepherd more so than the grandfathering of the specific animal at that time? Can I legally have another large did since my purchase in 2002 preceded any restrictions and was specifically based on the no-pet restriction atmosphere of this community? Thank you so very much for your time.

ANSWER:

The first thing to check is to make sure that the board did not enact a rule that is trumped by a provision in governing document that has higher authority, For example – a rule cannot modify a provision in the Declaration. In the previous answer there is a brief description of the hierarchy of governing documents. If the weight restriction was properly enacted as an amendment to the Declaration you will have to abide by the new provision.

The "grandfathering" provision is often misunderstood. The provision is often used to make the possibility of a change to the existing restrictions more palatable to the unit owners. Unit owners are often mistaken in thinking that the new amendment never applies to them. Unfortunately, the pets you had at the time of the amendment were "grandfathered" and now that your pets have passed away, you must follow the new restrictions as to weight limits. If there are a lot of like-minded owners you may be able to change this provision but unless the rule is revised (assuming it was properly enacted), you are limited to a dog that is 30 pounds or less at maturity.

 

***

(April 2, 2014)

QUESTION:

I live in a 240 unit condo in Highland Beach Florida. The Board of Directors has decided to implement the requirement that all units have hurricane windows installed. Several years ago the board of directors required that all units have hurricane shutters. I do have shutters on my unit and they are up to code at my own cost. All units in the building now have either hurricane windows (put in by the unit owners) or hurricane shutters. Can the Board of Directors now require that I put in these windows? They have an agreement with a company but although the cost is somewhat reduced, it is still approximately $18,000 which I do not have at this time. I would appreciate your opinion. There was not vote taken of the unit owners. It was just a mandate from the Board of Directors.

ANSWER:

Florida Statutes Section 718.113(5) was adopted in 1992 and addresses hurricane shutters. Prior to adoption of the statute, an association could have actually prohibited installation of hurricane shutters as a material alteration to the common elements or exterior of the building. The statute now mandates approval under certain conditions. In 2011, the Legislature recognized that a condominium has a right to ensure uniform hurricane protection, and in many cases to install hurricane impact resistant glass. Legislation allowing the Association, with a majority vote of the unit owners, to install impact resistant glass or other code-compliant windows was signed into law in 2011. A vote of owners is not required if maintenance, repair or replacement of hurricane shutters, impact glass or other code compliant windows are 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 has been previously installed that complies with or exceeds the current applicable building code, 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.

Therefore, in your situation, the Association cannot require that you replace the glass in your unit unless a majority of the unit owners vote to require such a mandate.

QUESTION:

My husband and I live in Coral Springs Florida and are interested in renting a unit in an Association. It’s very small with only 16 units. The management company has given us a screening packet which I am very well familiar with since I have been in property management for 8 years now BUT as an Association bookkeeper. They want to perform a background check which I have no problem with except when it comes to my husband he has a felony from 20 years ago. Will this cause us to get denied?? Please advise.

ANSWER:

The question regarding whether or not the felony conviction would result in denial could be asked of the management company prior to completing the application. The Association must have the authority, pursuant to its governing documents, to approve or deny occupancy by a renter. If it has such authority it should also have established criteria to guide the board in making its decision. Very often a felony conviction could result in a denial although an association may limit the request for such information to a specific number of years.

 

QUESTION:

How can I check to see if our condominium directors have taken the required Florida state certification course? If a condominium director is reelected do they still have to take another Florida certification course?

 

ANSWER:

The directors are required to either submit a certificate of satisfactory completion of the education curriculum administered by a division-approved condominium education provider or to certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. A director who serves continuously without interruption is not required to take another certification course. The written certificate or the educational certification is part of the official records of the association and as such is subject to inspection by the unit owners. Failure to have such written certification or educational certificate on files does not affect the validity of any action.

 

***

(March 19, 2014)

QUESTION:

We are a condominium of less than 8 units. Our condo by-laws were never updated (1970). We need to have an election and we do not know if we should follow our condo by-laws which only requests a five days’ notice to be posted for the annual meeting and elections or if we should follow the Florida Statute with the 60 days’ notice prior to election? Last year, we had lots of problems with our elections. Months later, some owners were questioning the validity of the board and the process we followed. In addition, our by-laws establish that in the annual elections, the owners vote for a board of directors and also for officers. How is the process of the election of officers if we follow the Florida Statute? Who elects them and again, should we follow our by-laws or Florida Statute? Regards and many many thanks.

ANSWER:

If an Association governs 10 or fewer Units and it has voted to opt out of the statutory election process, the provisions of the Bylaws can control. The provisions of the administrative code that define the election procedure can be found in 61B-23.0021 Regular Elections; Vacancies Caused by Expiration of Term, Resignations, Death; Election Monitors. The administrative code states as follows:

(1)(a) Unless otherwise provided herein, the provisions of this rule apply to all regular and run-off elections conducted by a condominium association, regardless of any provision to the contrary contained in the declaration, articles of incorporation, or bylaws of the association.

Therefore, you should follow the provisions of the administrative code, and not the provisions of your bylaws when conducting an election unless your members have voted to opt out of the statutory provisions of the law. When reviewed with the provisions of your governing documents, the following chart is helpful when determining the required meeting notice. As to the election of officers – the law is silent as to what controls. If your bylaws provide that the members elect the officers, it would be appropriate to follow your bylaws.

***

(March 5, 2014)

QUESTION:

Currently live in a condo in Celebration, Florida and our Board Newsletter now states that we must inform the Board and/or Management when we are painting the interior for their approval. I cannot find anything in our governing documents stating we must notify anyone of any interior decorating. I do not understand why they should or should not approve of interior painting. It is a personal statement of whomever lives in each condo and doesn’t affect anyone else.

ANSWER:

Perhaps the board is requiring you to inform then when you will have contractors working on the premises and the newsletter is not clearly worded. If that is the case, the board is probably acting within the authority granted it under the governing documents. If the board is suggesting they have the authority to approve or deny the painting within your unit, unless that authority is granted in the governing documents or there is an area within you unit that is the responsibility of the Association to paint, it is doubtful that they Board has such authority. If the authority is not granted in the Declaration, the Articles of Incorporation or the Bylaws, the board cannot implement such a rule.

QUESTION:

I bought my condo (718) in 5/2012, at the time I was told that that the association is FULLY FUNDED, the same was for the 2013 budget. In October 2013 I volunteered to the budget committee and I found out that nobody ever thought about the Mansards. We have reserve for roof, paint, pool etc. but the board never in 35 years calculated the mansards. The mansards are over $90,000 and it will be more than $2,500 for my unit. I am retired and this will be my last home, knowing that everything is paid for helped me decide to purchase this condo and not other condos. My question: did the board violate Florida law and what should I do next?

ANSWER:

Reserves for deferred maintenance (performed less frequently than yearly, to maintain the asset’s useful life) and capital expenditures (purchasing or replacing assets that have a useful life over one year, or extending the useful life over one year) are required for certain building components, unless the membership votes annually to waive or reduce reserve funding.

Unless properly waived in whole or in part, condominium associations must reserve funds for roof replacement, building painting and pavement resurfacing (all regardless of cost) as well as for any other item for which the replacement or deferred maintenance cost exceeds $10,000. In your case it seems as though the Board did not fund the reserves for an item that costs over $10,000, although they stated the reserves were fully funded. Going forward it would be prudent for the board to engage an engineer to examine the property and to make sure there are not any other items that have not been funded, since it appears that it was the intent of the membership to fully find the reserves. As to your remedy for buying a unit in a building for which you were advised the reserves were fully fund – you would have to consult an attorney in order to pursue damages if any are warranted.

 

***

(February 19, 2014)

QUESTION:

We have owned our condo for 5 years in Naples FL. It filled all our criteria except for one, when we purchased. Our son is 24 and has Cerebral Palsy, is nonverbal and uses a wheelchair. Our condo is on the 2nd floor. No elevator. We carry him up and down. This has worked as we are fit parents!! I wrote a proposal to our condo board asking to lease space in the alley to install a lift. I proposed a 5 year lease at $10,000. The proposed site is next to the trash bins and away from other units. I got an estimate from a reputable elevator company and the lift is $20,000. We are paying for all aspects of this project. I even offered to pay to have the lease drawn up to their specifications. I felt this is a win, win for all. Money in the reserves for the association and we get a lift and assume all liability and maintenance etc. We have always been sensitive to others needs and never want charity or pity when dealing with Michael’s needs. This lift is considered personal use and a professional from the building department came out and approved the site. He said just include the approval letter from the board. My question: Does the 3 member board need to approve this or all 15 units?

ANSWER:

The Board cannot refuse a request for a reasonable modification and it would be prudent of your Board to present your request to the Association attorney, who is probably very familiar with the requirements under the Fair Housing Act, (the "Act") before responding to your request. There is a requirement, under the Act, that requires an Association to permit a disabled unit owner to install a lift at the unit owner’s expense with Association approval. The Act makes it unlawful for the Association to refuse to permit you to make a reasonable modification in order for your son to gain access to the Unit which is certainly necessary for him to have full enjoyment of the premises. All modifications, including the installation and maintenance of the modification, are at the expense of the unit owner requesting the modification.

Pursuant to a joint statement, issued by The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") in March 2008: "Each are jointly responsible for enforcing the federal Fair Housing Act (the "Act"), which prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. One type of disability discrimination prohibited by the Act is a refusal to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.

"Reasonable modifications can include structural changes to exteriors of dwellings and to common and public use areas. Any person or entity engaging in prohibited conduct – i.e., refusing to allow an individual to make reasonable modifications when such modifications may be necessary to afford a person with a disability full enjoyment of the premises – may be held liable unless they fall within an exception to the Act’s coverage. Courts have applied the Act to individuals, corporations, associations and others involved in the provision of housing and residential lending, including property owners, housing managers, homeowners and condominium associations, lenders, real estate agents, and brokerage services. Under the Fair Housing Act, a reasonable modification is a structural change made to the premises whereas a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service.

"When a person with a disability believes that he or she has been subjected to a discriminatory housing practice, including a provider’s wrongful denial of a request for a reasonable modification, he may file a complaint with HUD within one year after the alleged denial or may file a lawsuit in federal district court within two years of the alleged denial. If a complaint is filed, HUD will investigate the complaint at no cost to the person with a disability. There are several ways that a person may file a complaint with HUD:

"By placing a toll-free call to 1-800-669-9777 or TTY 1-800-927-9275; or By completing the "on-line" complaint form available on the HUD internet site: http://www.hud.gov; or By mailing a completed complaint form or letter to: Office of Fair Housing and Equal Opportunity Department of Housing & Urban Development 451 Seventh Street, S.W., Room 5204 Washington, DC 20410-2000.

Prior to proceeding with a complaint, make another request that the Association allow your reasonable request for a modification and ask that they have an attorney assist them in formulating the response. It would be beneficial for you to help educate the Board prior to getting into a costly legal battle."

 

***

(February 5, 2014)

QUESTION:

Our Florida Homeowners Association has a limit of no more than one 20 pound dog. We have two 20 pound dogs. Can the HOA enforce this restriction? Also, if the dogs are therapy dogs and we have a letter from an MD, does this matter?

ANSWER:

If the Association has been consistent in enforcing a restriction they can continue to enforce the restriction. As to the therapy dogs – that is decided on a case by case basis.

QUESTION:

Our condo association has 5 members on the board. One person has resigned. When the votes came in there were 6 people on ballot, would the one person who didn’t make the board be next in line to fill in the now vacant place on board? And can the board only keep the 4 members without filling the vacant space? Or appoint someone of their own choosing without giving the spot to one who was voted on in the election but did not win.

ANSWER:

Unless otherwise provided in the Bylaws, any vacancy occurring on the board before the expiration of a term shall be filled by the affirmative vote of the remaining directors, even if there is less than a quorum. The board is not limited to appointing a previous candidate and the board can elect not to fill the vacancy as long as the remaining directors are sufficient to constitute a quorum of the Board.

QUESTION:

According to the Florida statutes, proxies may not be used when voting for board memberships unless the association has 10 or less units and is written in the by-laws. Our association has 16 units and the by-laws state that proxies may be used for voting for members. When I asked about this at the annual meeting, I was told that our by-laws superseded the state law. I feel that our by-laws do not follow the law. Am I correct?

ANSWER:

Proxies may not be used when voting in a condominium election because this provision in Florida Statute 718.112 states "The members of the board shall be elected by written ballot or voting machine. Proxies may not be used in electing the board in general elections or elections to fill vacancies caused by recall, resignation, or otherwise, unless otherwise provided in this chapter." If it was the legislative intent that the Bylaws of the Association prevailed, this provision would have included "Unless the bylaws provide otherwise" Therefore, even if your Bylaws provide otherwise, you cannot vote in an election by proxy.

 

***

(January 22, 2014)

QUESTION:

How do we find the rental cap number for our condominium association? It is not in the by laws or rules and regulations. The last president quoted verbally 30% but she is gone and we are trying to verify that number.

Thank you!!

ANSWER:

If there is a rental cap – meaning only a certain percentage of units can be rented at any time – it would have to be in the Declaration of Condominium. If the Declaration, as originally recorded, did not contain a rental cap, then the unit owners would have had to vote to amend the Declaration to provide for a rental cap. If there is nothing in the Declaration that references a rental cap, then the Association cannot enforce a rental cap.

QUESTION:

What can be done when the Board of Directors of an HOA vote to approve a Capital Improvement over the limit provided in the Declarations by calling it a "special assessment"? The proposed project does not meet the definition of a "special assessment."

ANSWER:

There are several things to consider that are related to your question. Some of them require a vote of the members and some things can be accomplished by the Board.

Section 718.113(2)(a), Florida Statues provides that "there shall be no material alteration or substantial additions to the common elements or to the real property which is association property, except in the 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."

If the board is adding something that never existed before – the first vote needed would be to approve the addition pursuant to the governing documents and the law. If this is merely a repair of an existing item, the item would not be classified as a capital improvement. The governing documents should define what is considered a capital improvement – but it is usually something that was added – not repaired. Example of a capital improvement – there is not a tennis court – but the board wants to add a tennis court in an open field. Example of a repair – the existing tennis courts need to be resurfaced. The method for paying for a capital improvement or a repair can be accomplished either by a special assessment or by adding a line item to the operating budget and approving the budget with the line item.

 

***

(January 8, 2014)

QUESTION:

If an amendment or article is voted no, how soon can the article be brought up for another vote??

ANSWER:

There is no limitation regarding when the amendment can be voted on again in the law – but you have to also check the governing documents. The board should determine why the amendment failed. If it was because enough people did not vote, perhaps the board can try again and make an effort to get the votes collected. If it is because people voted the amendment down, the Board should think about why the residents did not support the amendment and revise it before attempting to try getting the amendment passed again.

QUESTION:

We just moved into a wonderful condominium to discover that, more often than not, when we walk into one of our bathrooms, it smells like a dirty ashtray. The smell of this smoke permeates the bathroom and a nearby closet and seeps into the kitchen, dining room, living room and hall areas as well. We were told that others had complained about this but there was nothing the condo association could do to stop the smokers from smoking in their units. We were also told that the smokers had been asked not to smoke in the units, one flatly refused and threatened to bring legal action if bothered, another has said he would smoke outside - the problem remains.

In addition to closed AC/heating duct systems for each apartment, the building also has a passive common venting system which removes air from apartments and recycles that air by a common vent and air handler on the roof. That common venting system seems to be the culprit. We are wondering if the association is obliged to control that common venting system in a way that it keeps smoke from entering into other apartments. Smoking is not prohibited in apartments in this building and so we are wondering what action, if any, the association can take to limit the venting in such a way that it does not infiltrate other apartments.

One of us is an asthmatic and second hand smoke is a very real problem.

We are about to send a letter to all the owners in the line we are in to find out who else is being affected and we will send a letter to the Board as well. Are there any legal steps we might take if all other actions fail?

Thank you for your help.

ANSWER:

This is not an uncommon issue. As a non-smoker I sympathize with this issue. The Board could attempt to amend the governing documents to require that the smokers install a filtering system within their units if they are going to smoke. Often boards are comprised on smokers, so they may not be likely to amend the governing documents. Additionally, it becomes an issue of enforcement which can be costly and difficult for the association. The other option may be for the non-smokers to look into installing some sort of filtering system within their own unit. There have been residents that have been successful in controlling second hand smoke through air filters – but there are no guarantees that it will work.

 

***

(December 25, 2013)

QUESTION:

Good afternoon!

Thank you for your service. Can a Florida condominium board member who resigns from the board, run again at a later date? There are no references in the Declaration, Articles of Incorporation or Bylaws as to this situation. Thank you

 

ANSWER:

Yes, a board member that has resigned is eligible to seek re-election. A person who has been suspended or removed by the division under FL STAT Chapter 718, or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot. A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in this state, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board. Other than that – a board member that resigns is eligible for reelection.

QUESTION:

I am a member of a FL condominium association with 23 owners. There are four separate buildings of 8, 6, 5, and 4 condos. I am an owner in the building with 8 condos. Of the 23 condos, my condo is one of the smallest at 1144 sq. ft. The largest condo is over 3500 sq. ft. and the average condo is around 2500 sq. ft. Each building has a separate declaration. In the one applicable to my property, it states I own a 1/8 share of the common areas and am responsible for 1/8 of the common expenses. At our recent annual meeting, I questioned why I was required to pay 1/23rd of the common expenses associated with all four buildings. My question to the board was, why do I pay the same as units 2-3 times the size as mine? In effect, I subsidize these larger properties. This is particularly true in the case of insurance and capital repairs such as painting, roofing, paving, etc.. The answer was, it’s in the bylaws. This leaves me with two questions.

1) Can I be required to pay HOA dues to cover property of which I don’t enjoy an ownership stake?

2) Can the bylaws be in disagreement with the declarations?

Thank you for your time and assistance in this matter.

ANSWER:

1) Pursuant to Florida Statute 718.115 the proportionate share attributed to each owner is fixed in the Declaration. In the event the members wish to challenge or change a proportional share it would require the affirmative vote of 100% of the membership. This is stated in 718.110 (4).

Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns the common surplus of the condominium unless the record owner of the unit and all record owners of liens on the unit join in the execution of the amendment and unless all the record owners of all other units in the same condominium approve the amendment.

2) The Declaration is superior to the Bylaws, therefore if there is conflicting language – the Declaration prevails.

QUESTION:

Can unit owners in a Florida condo assoc. have a meeting of just unit owners without the board of directors to discuss common problems?

ANSWER:

I certainly hope so – I am not sure in what context you have been advised otherwise –as long as there is not a quorum of the Board of Directors making decisions that will affect the association.. Do try to keep in mind that your boards of directors are volunteers and they should be respected for taking on such a responsibility and serving on the Board.

 

***

(December 11, 2013)

QUESTION:

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

 

ANSWER:

Unless the governing documents specifically state that charitable contributions are a common expense, the Board used Association funds for other than common expenses in violation of section 718.115(1), Florida Statutes. Association funds may only be spent on common expenses of the Association as defined in The Florida Condominium Act and the governing documents. The Act states in part as follows: 718.115 Common expenses and common surplus.— (1)(a)Common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property, costs of carrying out the powers and duties of the association, and any other expense, whether or not included in the foregoing, designated as common expense by this chapter, the declaration, the documents creating the association, or the bylaws. Common expenses also include reasonable transportation services, insurance for directors and officers, road maintenance and operation expenses, in-house communications, and security services, which are reasonably related to the general benefit of the unit owners even if such expenses do not attach to the common elements or property of the condominium.

QUESTION:

Our Board added 2 members in March 2013 for a total of 7 Board members. They then passed bylaws in April that state we will have a 5 member Board. Are they required to have election to reduce the Number of Board Members to 5 as stated in new bylaws? Thank you.

ANSWER:

An election is not required mid-term due to the amendment of the Bylaws. The five member board will be effective at the next election after the passage of an amendment to the governing documents. An association must determine the number of directors prior to the election because pursuant to Florida Statutes, Section 718.112 ballots must be sent to all members prior to the time of election indicating the number of candidates for whom they may vote. Additionally, Florida Statutes, section 718.112 (2) (a) 1, provides: The form of administration of the association shall be described indicating the title of the officers and board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. Case law provides that in the absence of such a provision, the board of administration shall be composed of five members.

The Bylaws of the Association must provide a definitive method to determine the number of eligible seats on the board before the election; otherwise the law sets the number of seats at five (5) members. If the Board has the authority in the governing documents to amend the Bylaws to change the number of seats on the Board, this must be voted on prior to the election. Therefore, if your governing documents now give your board the authority to determine the number of seats on the board, or sets the number of seats on the board to five, then the vote that was taken by your board will be effective at the next regular scheduled annual meeting and there will be five members elected. The vote to reduce the Board to five members does not require a new election.

 

***

(November 27, 2013)

QUESTION:

The condo bylaws state a unit may not be rented until the unit has been owned for 2 years. The bylaws have not been changed.

For the past 5 years the condo board president has permitted investors to buy the condo units and rent them immediately. Does this set a precedent for the future for all unit sales? May the new owners rent immediately?

A new board of directors is in place and they want to enforce the 2 year rental restriction. Several units are in the sale process and the new buyers have been told they may not rent the units out for 2 years. The old board of directors permitted rentals right away.

ANSWER:

In the event the Board has failed to enforce a provision of the documents there is a mechanism in the law that can be used to reestablish enforcement of the provision going forward. In essence the board can send out a letter which identifies that the Board of Directors has reviewed how the Association has enforced the restrictive covenants governing the Association over the last few years. The provision that the board has failed to be enforced must be identified in the letter. In your example the Association should identify that it wants to create a clear legal path, going forward, for enforcement of the rental provision until a unit has been owned for two years. To accomplish that objective, the Association must grandfather any existing units rented before the two year ownership requirement provided the Owners of the Units specifically identify the units that are rented. The burden is on the Unit Owners to timely come forward and identify which units are rented in advance of the requirement for two years of ownership. Such existing renters will be grandfathered and may remain until such renters move; however such renters may not be replaced until the two year ownership requirement is met. The above policy will be enforced against all Nonconforming Unit Owners that are not registered with the Association as specified in this Notice.

QUESTION:

Eighteen years ago I purchased a more expensive condo, in the building, with a beautiful view of the ocean. Over the many years, I have enjoyed sitting on my balcony relishing this gorgeous site. A few years ago, the condo association planted more palm trees around the grounds including a few below my balcony. They have now grown so tall, they completely block my view of the ocean. I have requested that the board have the gardeners top off the trees to a point where I can once more have the full view of the ocean I had originally. They have refused to do so, saying they cannot cut down the tree. I am devastated as I can no longer enjoy what I purposely purchased, and also has definitely reduced the value of my condo. I am completely inconvenienced on the second floor while those above me do not have the same problem. Does the association have the right to deny me what has been my most delightful possession for so many years? I am devastated. Other trees around the property have been completely removed at the discretion of some members of the Board. I read your column regularly and would appreciate your best opinion in this matter. Thank you.

ANSWER:

A palm tree will not survive such a trim– the heart of the tree is in the palm fronds – it will die. Perhaps you can pursue this as a material alteration of the common elements if your documents require a member vote to change the landscaping. Perhaps a review of the documents will reveal the answer otherwise, if the documents are silent Florida Statute 718.113 (2) applies. This provision requires a vote of 75% of the total voting interests to approve before a material alteration or addition can be made. You will have to consult an attorney to determine your rights and obligations.

 

***

(November 13, 2013)

QUESTION:

Can my HOA Board have Nominations and election on same day at the annual meeting? Is that legal with no time for a new person running to campaign?

ANSWER:

A Homeowners Association can have nominations from the floor at the annual meeting unless the governing documents have provided for an alternate method for elections that is similar to condo elections. In a condo there cannot be nominations from the floor because the procedure requires that those seeking to run must submit a letter of intent to run in advance of the mailing of the second notice for the Annual meeting and Elections. The second notice will provide each owner with a ballot to be used in the election.

QUESTION:

Recently we gave a week at our Florida condo to a charity to auction off at a fundraiser (Big Brothers Big Sisters). The successful bidders were at our unit for one week, our condo association has a rule (I believe created due to insurance) you cannot rent your unit for less than a month. We did not consider our donation (with no personal or tax credit gain) as a rental and wonder if it actually is? This week we received a threatening letter from the condo association indicating legal action could be taken for a violation of the rental rules if our violation contributes to the building losing status as a "commercial residential property" for insurance purposes.

I would like to respond in a professional manner and apologize for our errors however I also don’t want to be oppressed by the association.

Can you please offer clarification/suggestions as to how I must proceed?

ANSWER:

You have to follow the rules . . .unless you change the rules. You have been advised that the condo has specific rules regarding rentals not being less than one month. Is the "donation" of your unit a bona fide rental or was it occupancy by a guest without the owner present? Does you condominium have restrictions in its governing documents addressing the use of your unit by a guest? The other issue is the fact that someone that even you do not know and who has not been vetted by the Association is occupying the unit. I think the best response is to follow the rules as they are written and if there is a matter that is subject to interpretation you should ask for clarification before the occupancy of the unit. Now you have a situation where the Association has put you on notice of a concern that could put the Association is jeopardy and if you do not intend to donate the unit again, I do not think a response is necessary. If you do intend to donate the unit again, you should clarify the issue with the Association prior to offering the unit as a donation. Although your intentions are admirable, if they cause the association to lose its insurance it is not in the best interest of the Association. You are not being oppressed by the Association – you own a unit in a condominium that is subject to its Declaration of Condominium which is a covenant running with the land. You have to abide by the restrictions in the governing documents.

***

(October 30, 2013)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(October 16, 2013)

QUESTION:

I own a 2-bedroom condo in a small 7 unit complex. The condo is currently rented for a 6-month lease, which is allowed by the association. During our association meeting yesterday, someone said that the couple who is renting the condo had another couple over the weekend visiting. They didn’t like that there was a couple there whom they did not know.

Am I required to restrict my tenants from having visitors over for the weekend? Am I supposed to require tenants to provide prior information about their guests so the association can screen them?

Appreciate your time to answer these questions.

ANSWER:

The Declaration of Condominium may have provisions limiting the length of a guest stay or the frequency a tenant or an owner may have overnight guests but if it does not contain a provision regarding restraints on guests occupying a unit it is unlikely that such a provision would be enforceable. Even if there are provisions limiting visits by guests of owners or tenants the restrictions would have to be reasonable to be enforced by the Association. It could be considered unreasonable to expect a tenant not to have short term guests when they are renting a unit. If the tenant or their guests create a nuisance in the unit or the common areas that issue could be dealt with by first notifying the owner of the disturbance and giving them the opportunity to cure the problem. Very often an Association resorts to drastic measures in dealing with issues of guests of owners or tenants that cause a disturbance when a simply request to the owner may resolve the problem. A board may attempt to enact a rule or regulation that limits rights granted by the Declaration but such an action is unenforceable. As long as the owner, the tenant and/or the guest is in compliance with the provisions of the Declaration or the local occupancy ordinances the Association should not interfere. Furthermore, pursuant to FL STAT 718.123 (1): All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners, in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities.

QUESTION:

I own a parking spot on the second floor of my condominium. Recently, the board created a policy that all owners must place a parking sticker with shows a number and the name of the condo affixed to the front window of their cars. I already have registered my license plate with the condo and don’t want to put this sticker on my car. Property Management says you must put it on or they will disable my fob which will prevent me entry into the garage to park at my spot. They say they can disable my fob because to get to my owned parking spot I have to drive on common area lane way. There is no other way to get to my parking spot without driving on the lane way down to my spot. Can they actually disable my fob if I don’t follow this policy?

ANSWER:

It is not unreasonable for the association to require a sticker on the windshield identifying cars that actually belong in the parking garage. This method of identification is not uncommon in parking garages as it allows security personnel to quickly identify an unauthorized vehicle in the parking garage. An inquiry as to why this is being implemented may provide you with a reasonable explanation.

 

***

(October 2, 2013)

QUESTION:

My condo board gives verbal consent for rules that require express written consent. I have noticed them repeatedly to comply with written consent requirements.

Please comment.

ANSWER:

If written consent is required the board should not give verbal consent unless it is in the form of a motion at a duly called meeting. The minutes of the meeting should reflect the motion, whether it was seconded and the vote. How is the board keeping track of things that require written consent if there is nothing in writing? As a unit owner you should demand written approval from the board when it is required, otherwise you will not have any method for documenting that you received such permission. If all else fails I would suggest that you run for the board so that you can contribute to changing such a policy.

QUESTION:

I plan to rent a condo in Florida for 3 months. The Condo Association requires I submit my Social Security Number, Employers contact information and my salary. Am I required by law to give this information to the Condo Associations, specifically my Social Security Number ?
What are my options?

ANSWER:

The condo is probably requesting the information so that it can conduct a background check to make sure renters maintain the integrity of the community association. As long as the condo is granted the authority to approve renters in its governing documents, it is permitted to conduct a background check. As a non-owner you probably do not have standing to challenge this requirement. Your only option would be to rent in a complex that does not require a background check. As a side note – the condo association cannot share the information it obtains from the research it conducts in order to consider your occupancy with anyone – including the owner of the unit being rented. If the owner or the condo association wants this information, each must request authorization from the renter to request their own background check.

 

***

(9-18-13)

QUESTION:

My husband and I recently started using a service to host people in our second bedroom of our owned condo. We told our association about this and for two months, nobody had a problem. However, now my next door neighbor has suddenly decided that she is against this action. She has been out of the country, so there is no way she was inconvenienced by it. Our condo docs say something like, "no lease under 3 months shall be entered into". Is renting our second bedroom through a website service considered a lease? The guests do not have access to common areas as they are under separate locks, and we are always home when the guests are here. Additionally, we provide them a continental breakfast and maid service. My own research shows that it is "owner occupied paid housing". Is this different since we are living in the unit?

ANSWER:

Without reading your governing documents or the applicable code in the municipality that you live in there is no way I could give you a definitive answer, but it is more than likely that what you are doing is not permitted. You are essentially turning your unit into a bed and breakfast. This could be construed as conducting a business in your unit, which is probably a violation of a municipal code and / or your condo governing documents. You are renting out a portion of your unit, which is probably a violation of your condo governing documents. You are not submitting your "renter" to the association for approval, if it is required in your condo governing documents. The first thing I would suggest is that you contact the code enforcement division in the municipality where you live and ask them what is required in order to advertise and rent a bedroom in your home on a short term basis. They will be able to direct you to the proper authority to answer those questions. In addition, you can read your Declaration to see if it has language that addresses whether you can rent a portion of a unit and if rentals require association approval or if there are minimum or maximum days or times a unit may be rented. Finally look for language in the Declaration that addresses whether or not you can conduct a business in the unit. More than likely, renting your second bedroom is not permitted either by the condo governing documents or the municipal code where you leave.

QUESTION:

There is a new law in my state that requires units to have CO2 detection devices. Neither the management company nor the board has notified owners. The management company says the law does not require them to inform the board. I argued that it is in the best interest of the HOA and its shareholders to be informed and in compliance with new laws that impact owner’s property interests. Please comment.

ANSWER:

The management company has advised you that the law does not require them to notify the board or the owners. If you feel it is imperative the board or the unit owners be notified, I would suggest that there is probably not anything in the law preventing you from advising the board or the unit owners of this requirement. Perhaps there is a public bulletin board where you could ask for permission to post your own notice to the owners. I would defer to the management companies attorney to provide the management company direction as to its responsibilities under the law.

QUESTION:

We currently are renters in a HOA in Ft. Lauderdale area. In the past few weeks, the HOA has had contractors out to redo a curbing, and repair parking areas. However, at the one curb, they left a hole several inches deep which is a danger. Our 7 month old puppy stepped in the hole and snapped his leg. A surgery was required and the current bills are in the area of $4,000.00. My husband spoke to our Landlords (who are awesome people but live in a different state) and they advised that we contact the HOA rep. We did contact the management company who asked that we send them pictures and receipts for the pups injuries. He did say that with the amount, he would present it to the board but felt they may have to contact an attorney. When asked to attend HOA meeting, my husband was told that we are "only tenants" and are not allowed to attend meetings. What rights do we have?

ANSWER:

Pursuant to the governing documents, which I am not familiar with, you probably do not have a right to attend a board meeting without a power of attorney from the owner. You do not need to attend a board meeting to start the process to resolve this issue.

Send the invoices and other information to the management company as they have suggested with a written request that they put the insurance carrier(s) for both the Association and the contractor on notice of a potential claim. In addition to you submitting the claim to management, the unit owner can put the Association on notice of a potential claim and demand that it be forwarded to the insurance carrier(s) for consideration. Regardless of which approach is followed, the insurance carrier(s) for the association and the contractor must be put on notice of a potential claim so that the appropriate insurance carrier can make a determination as to whether or not the parties have coverage for such a claim. Most important, time is of the essence in getting this reported. If you are in doubt as to your rights to collect for damages from the Association, its contractor or its insurer, hire an attorney so that you can be sure to preserve your rights. This column is not a substitute for seeking advice from an attorney.

 

***

(9-4-13)

QUESTION:

Could you help me with some budget questions regarding my Florida condominium budget?

Regarding reserves:

Is it proper to set up a reserve fund account to cover insurance deductibles? This would protect the unit owners from large special assessments in the event of a major loss. If the association has three reserve funds (roof, painting and re-paving) does the interest on each fund have to be posted to each specific account, or can a separate reserve account be created ("Reserve Interest"). Is interest taxable?

Thanks for your help.

ANSWER:

The Condominium Act states that reserve funds and reserve interest must be used for authorized reserve expenditures unless their use for other purposes is approved in advance by a vote of a majority of the voting interests present or represented by limited proxy at a duly called meeting of the unit owners. Therefore, if the Board wants to insure that there are sufficient funds to meet insurance deductible, it can create a reserve line item for that purpose. While this may provide funds needed in the event there is an insurance claim, the funds may not be used for any other purpose without a vote of the unit owners. Any interest earned on reserve funds that are invested must be allocated to the specific line item. Any concerns regarding taxable consequences should be referred to your accountant. For more information on budgeting the Division of Florida Condominiums, Timeshares and Mobile Homes has a publication on its website titled Budget and Reserve Schedules.

http://www.myfloridalicense.com/dbpr/lsc/LSCMHCondominiumPublications.html

 

QUESTION:

I live and am on the board of a condo association with 40 units. As it is a small community, the board members are friendly with one another and would like to socialize. However we are not sure if a get-together social with two or three board members would be construed as a board meeting and prohibited.

ANSWER:

What an interesting concept – board members that are friendly with each other. So often people forget that one of the advantages of condo living is the ability to enjoy the social aspects of condo living. There is not any prohibition to Board members socializing – just resist the temptation to discuss association business. In fact Board members should resist the temptation to ever discuss association business outside of a board meeting. A simple response to your fellow unit owners should be that the Board has a policy not to discuss association matters outside of a Board meeting. This should be sufficient to divert discussions about association matters if anyone that asks about something regarding the operation or maintenance of the condominium. Enjoy yourselves and your social activities by just being friends and neighbors.

 

***

(8-21-13)

QUESTION:

My condo, which was originally in my ex-husband’s name when purchased, was put into my name and my son’s name after I had remarried to my now present husband. My husband wanted to run for the board and was told that he could not since his name is not on the deed. In the state of Florida, is he automatically an owner since this was obtained after we were married? Does his name have to be on the deed for him to be on the board?

ANSWER:

Your husband would have an interest in the property if it is his home – but that does not translate to ownership as it relates to your Condominium Governing Documents. You have to read the Governing Documents to determine who is eligible to serve on the Board. First, locate the provision that addresses eligibility for the board. If it states an owner or "other interested parties" or states that ownership is not required to serve on the board, your husband may be eligible. If it states an owner / members are eligible to serve on the board, find the definition of an owner / member in the governing documents. Usually, governing documents require evidence of a "recorded instrument" as proof of ownership. That proof would be a deed that can accessed through the Clerk of Court where the property is located.

QUESTION:

Can a homeowner’s embarrassed spouse sue the homeowners association and the property manager for being kicked off the board during a meeting? Their reason - spouse already serving on board not on deed.

ANSWER:

First, see the answer to the previous question to determine eligibility for the Board. The answer to your question is that anyone can sue someone for any reason. Whether the lawsuit has any merit will be determined by the court system. Please refer the potential claim to your association insurance to comply with proper notification of a threatened action. In the event the Association is sued, its insurance may pick up the defense.

QUESTION:

The other night while attending a HOA meeting there was a lawyer there with a member who is suing the board for various things. The board asked him to leave and he refused and started threatening the board with even more legal action. My question is I felt harassed and threatened by this action because this member takes everything a person says and tries to sue them. I am a committee member for our trails and he even has a problem with trails being maintained and his lawyer was very intimidating. He was also sitting beside another gentleman who has pulled a gun on people trying to talk to him. My question was this legal for this lawyer to be there without us having representation. There are ongoing legal actions in the same matter that was being discussed. Should I stay away and resign?

Thank you

ANSWER:

Whether you stay away or resign is something only you can decide but my advice is for this Board to always have law enforcement and legal counsel at board meetings to prevent this situation from occurring. A volunteer position does not warrant anyone being threatened with liability or bodily harm. Should the attorney have advised the Association attorney he was planning on attending? Absolutely. If the Association is represented by counsel the unit owner’s attorney should have advised the association attorney that he or she intended to attend the board meeting. My best advice is for the Board to adjourn any meeting if they are not afforded advance notice by the attorney that he or she will attend with the unit owner and to always have law enforcement at every meeting.

 

***

(8-7-13)

QUESTION:

We live in a 55 year plus large gated community. One of our unit owners has an undesirable much younger man (about 30 yrs.) tenant living in her unit long hair, tattoos, cut offs. As Board members we have sent forms for interview and approval of this person. The unit owner has denied that he lives there and states "he comes in to visit every day" His vehicle was parked in our common elements for many nights but we had security request it be removed and it was. The "tenant" is still living there and the unit owner next door has complained about bad language, fighting, drunkenness etc. We also have reason to believe this person is doing renovation work on units in the community. He is often seen around early morning and late at night as well as during the day. He sits outside the unit and it is obvious that he is living there. As there is no admission that he does live there what can we do? When the President approached the unit owner about the situation she became very aggressive and shouted at him. The neighbor who complained only uses his condo occasionally and although asked to put his complaint in writing so far he has not. A potential buyer changed his mind about buying a condo in our building after seeing this person hanging around.

Thank you,

Susan

ANSWER:

The fact that the "guest" is under 55 does not come into play if the other occupant of the unit is over 55. The laws that govern housing for older persons merely require that at least one occupant of a dwelling in a 55 and older community must be over 55. However, the Association has the legal authority to enforce the governing documents (including rules and regulations). Section 718.303, Florida Statutes specifically requires tenants (and other occupants) to comply with those rules as well as the Condominium Act. The problem you are faced with is not uncommon. The association may have the option of bring a lawsuit to enforce its regulations, since it is apparent the resident is ignoring all other attempts to remove this "guest." The problem for many associations is that a lawsuit can be very costly. If an association is going to proceed with legal action, it must first look to the governing documents of the Association. Are there provisions that permit the association to screen tenants? Are there provisions that define when a guest - even if not paying rent becomes subject to the screening process required of tenants? The stronger the language is in the governing documents the better chance the association will have to successfully conclude an action to remove this person from the premises. It may make sense to amend the governing documents to add stronger language to permit the association to present a clear and concise argument that the unit owner is in violation of the governing documents. The board should discuss this matter and the available remedies with its legal counsel before acting on this issue. The board should pursue all available remedies to remove this person and it should keep the membership apprised of the reasons it has to pursue this and any other disregard for the governing documents.

There are other provisions in the governing documents that may also be available to remove this person, such as nuisance provisions, but that could be difficult to prove unless residents are willing to take the steps necessary to document such a claim. For example - if there is shouting coming from the unit, the police should be called to investigate and make a report. The police reports can help establish the claim of nuisance.

There is no self-help under the landlord-tenant laws which are in place to protect people living in dwellings owned by others. A person need not be listed on a formal lease to gain protection under these laws, but may gain protection by establishing residence in a place. Transient guests, however, are not protected and the dwelling’s primary occupant may cause them to be removed. Transient status is determined on a case-by-case basis, focusing on whether the person has control over and possession of the space in question. The court considers such factors as how long the person has lived in the dwelling, whether he or she receives mail there, and the degree of control that he or she has over the space.

 

***

(7-24-13)

QUESTION:

We are part-time residents of a 20-unit condo building. Each unit has a single assigned parking space. Originally, second-floor units had the parking spaces in front of the building and first floor units were assigned less convenient parking spaces to the side of the building. When we bought our second-floor condo, we were unaware that the owners, who had bought a first-floor condo in the building the year before had swapped "our" assigned parking space with the assigned space for "their" unit. We found out about this a year or more later, as we became friendly with other owners, who told us. We have mentioned it to the original owners, who still live there part time, but they said that since they owned both units at the time of the switch, they were entitled to which ever parking place they wanted. From what I’ve read of Statute 718, this may not be so, as the parking space certainly was not deeded separately from the condo. Our condo documents do not address parking at all, and a complication may be that the association does not own the parking spaces; they are on a 99 year lease, for which the association pays rent. Any comments are very much appreciated.

ANSWER:

There are various ways that a unit owner has exclusive use of a parking space. A parking space can be a limited common element that is assigned by the developer or the association; or a common element that is assigned by the developer or the association; or it can be deeded to a particular unit.

• If the parking space is deeded to a particular unit, the unit owners can transfer ownership of the parking space via a document or deed recorded in the Official Public Records of the County where the property is located. Unless the governing documents require otherwise, this type of transaction may not require any association involvement.

• If the parking space is a common element that was assigned to a particular unit by the association or the developer, and the governing documents are silent as to how to transfer parking spaces, there are arbitration decisions and case law that would permit the association to assign the parking spaces as long as the association is not found to be in violation of the governing documents or Florida law.

• If the parking space is a limited common element that is assigned to each unit owner the governing documents may have language controlling how the exclusive use of limited common elements, such as parking spaces, can be transferred between owners.

If the governing documents are silent, the transfer of a limited common element parking space between owners would require a vote of the membership to amend the Declaration to permit the reassignment of the exclusive use by a unit owner of limited common elements pursuant to Section 718.106, Florida Statutes. This provision permits a Condominium Association to amend its Declaration of Condominium through the regular amendment process to allow for such exclusive right to use of limited common element transfers. Any amendment should also contain a provision for how to exercise the right to transfer the exclusive use of a limited common element among owners.

Usually the right to the exclusive use of limited common elements is reserved to specific units within the governing documents. If the governing documents are silent as to the method for transferring the exclusive use of a limited common element or a common element, a unit owner cannot merely decide to transfer the limited common element or the common element to reassign a parking space. Whether the land is owned by the association or is subject to a 99 year lease should not have any bearing on the validity of such a transfer. A thorough review of your governing documents and the history of this particular transfer would be required before a definitive answer can be reached in regards to your situation.

 

***

(7-10-13)

QUESTION:

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

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

ANSWER:

If the Association has the authority to screen unit owners and that authority is granted in the Declaration of Condominium without exclusions such as for transfers within a family, you will have to comply. Many times a board thinks they can adopt a screening process via a board enacted rule. If the authority is not granted to the association by the Declaration, the board cannot require you to comply with the screening process. You need to make sure your mother has a complete set of the governing documents and you need to review them to see if the authority to screen prospective owners is granted by the Declaration.

QUESTION:

We own a condo in a complex in Florida. Our condo fees are up to date. Renting is allowed with association approval. We have attempted to rent the unit, but the feedback is that there are too many people hanging around. In addition to the loitering, the pool is not open, although cleaned, because bathrooms are not operable and are being used for storage. Although it is a gated community the gates are not used. We understand fees must be paid but are frustrated with paying for something and not being able to rent the unit or use the facilities. What recourse do we have? How do we encourage the Association to clean up the property and fix the facilities for the enjoyment of all? We have attended meetings but nothing seems to happen.

Thank you.

ANSWER:

You probably need to do more than just attend the meetings. Start by putting your concerns in writing and ask the board to address your issues. If your volunteer board is not making sure that your community is being maintained, the fastest way to achieve change is to elect a new board. If you are unable to run yourself, perhaps you could solicit other owners who are like minded into running for the board. Very often boards become complacent over time because of the lack of involvement within a community. Finally if you have a management company, arrange to meet with your manager to discuss your concerns and see if the management company can assist in resolving things.

***

(6-26-13)

QUESTION:

When I purchased my unit in 2003, the bylaws allowed unit rentals. This was amended in 2005 to state no unit shall be rented at any time. I read that I could be grandfathered in or that this change may not hold up in court. I am upside down and want to move in without my girlfriend and our daughter at their home. Can you shed some light on this? The board insists that there is nothing I can do! Can a condominium association restrict the sale or rental of a condo unit?

 

ANSWER:

If you owned the unit before the amendment was passed and you voted NO to the amendment, you are "grandfathered" as to the restriction prohibiting rentals and you must be allowed to rent your unit under the same conditions that were in the Declaration prior to the amendment. A board may not prohibit rentals simply by enacting a rule. The unit owners must vote to amend the Declaration of Condominium.

The Condominium Act expressly permits a declaration of condominium to "include covenants and restrictions concerning . . . transfer of the units." Thus, an association may restrict the sale or rental of a condo unit. Issues arise when the association makes amendments to the declaration of condominium concerning such restrictions. 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. Fla. Stat. § 718.104(5) (2012); Fla. Stat. § 718.110(13) (2012).

 

QUESTION:

Does a renter have the same rights in using the common elements as a unit owner?

 

ANSWER:

Yes. When a unit is leased, the tenant shall have all use rights of the association property and common elements that otherwise would be available for use by unit owners.

 

QUESTION:

Does a unit owner have access to the common elements while the unit is rented out?

 

ANSWER:

The Condominium Act provides that the owner of a rented unit shall not have use rights of the common elements, except as a guest, unless the rental agreement provides otherwise. Furthermore, the association shall have the right to adopt rules to prohibit dual usage of association property and common elements by a unit owner and a tenant. Thus, it is possible that a unit owners access rights are strictly limited to those of a landlord pursuant to Chapter 83, Florida Statutes.

 

***

(6-12-13)

QUESTION:

Please  help me interpret a statute that seems ambiguous. Florida statutes 718.112 states: "However, written notice of any meeting at which non-emergency special assessments, or at which amendment to rules regarding unit use, will be considered shall be mailed or delivered to the unit owners and posted conspicuously on the condominium property not less than 14 days prior to the meeting."

I am on the Board and have a question: What does "Unit Use" in this instance pertain to? Does it refer to rules that require quiet hours (how people behave), or number of pets, or a flooring standard, or is it more specific to actual use such as use as a rental, or age limit, or commercial purposes? I haven’t been able to find a detailed explanation anywhere. A lot of rules in our Association have been adopted, or amended with a 48 hour notice. I am not so sure this was proper procedure.

ANSWER:

This provision applies to any rule promulgated that pertains to the use of the Unit as opposed to the use of the common element. For instance, a rule enacted regarding the hours the pool is open, would not require a fourteen day notice, but all of the examples you refer to do require a fourteen day notice. Please remember that there is a hierarchy of governing documents and rule cannot attempt to modify a provision in the governing documents.

QUESTION:

The words "amendment to rules" to me, implies adding, subtracting, or changing any rule for unit use and not just amending one already in existence. I surmise this because it says "amendment to rules" rather than "the amendment of a rule." Which is correct?

ANSWER:

It can mean creating new rules or amending rules that have been established in the past.

QUESTION:

I recently walked into the lobby of my condo building greeted by a new décor theme. I was completely caught off guard as there had been no correspondence to the homeowners that this change would be taking place. I’d like to know if this would be considered a material alteration for a community operating under Chapter 718 of FL Statutes.

We are a resort of 4 separate buildings each with it’s own Association. Two of the buildings had identical lobbies. The attached ‘before’ and ‘after’ photos will show the changes made (even though the before picture is of our ‘sister’ building that had the same lobby décor.

ANSWER:

Your specific governing documents may address this, but a change in color scheme could be considered a material alteration requiring a vote of the owners. Most changes are material changes requiring an owner vote. Some examples of when the board may have the authority to make a change without the vote of the owners are if the board is performing a repair that necessitates a change, if there are advances in technology that will provide a superior product with an extended useful life, if a change in a municipal code requires that the original material cannot be used, the original material is unavailable, or a change is required to protect the common elements. Merely changing the color scheme would not usually fall into any of these categories.

 

***

(5-29-13)

QUESTION:

Can you answer the question: If our documents require 5 board members and only 4 run and are elected does the Newly Elected Board have to appoint another director and if they do have to, but, choose not to, can any other Unit Owner declare that they would like to serve on the Board and then serve? Thank you.

ANSWER:

The board has the authority to appoint a member to fill a vacant position on the board. A unit owner does not have the authority to appoint him or herself to the board. The only option would be for that person to run for the board in the next election. Since the Board has enough members seated to constitute a quorum of the board (a quorum is a majority of the board) the Association is not in violation of Florida Law to have only four members. A quorum is based on a majority of the number of required board members – for example a quorum for a seven member board is always four – even if there are only five board members. In a five member board a quorum is always three.

QUESTION:

My question is can a condo board bid more at the auction on a unit that they are owed money on and are foreclosing?

ANSWER:

The Association is permitted to bid more than the amount of the lien, unless their governing documents prevent them from doing so. The Board is charged with exercising its fiduciary duty – so there should be a compelling reason for bidding more – for example if the amount owed is far less than the market value and there is not a mortgage, the Association could benefit by reselling the unit.

QUESTION:

We have a second floor condo in Florida. My mother had a stroke. How can the association help pay for lift or wheelchair accessibility. She cannot use her condo now as she cannot climb stairs. What should we do? It’s a 55 and older retirement community.

ANSWER:

The Association is not obligated to help pay for a lift or to pay for wheelchair accessibility although the Association is obligated, under the Fair Housing Act, to permit the owner a reasonable accommodation for the owner to install a lift or wheelchair access. If the accommodation requires a physical modification to the building or property and it is approved by the Association, it will be the requesting party’s responsibility to fund the installation, and, at all times thereafter, to maintain, repair, insure and replace the modification. Persons making a request understand that in order for the Association to grant an accommodation under the fair housing laws, the person making the request for an accommodation or a modification must be considered disabled under state and federal laws.

A person will be regarded as having a disability if at least one of the following conditions exists:

• The person has an open and obvious disability.

• The person is receiving disability social security benefits or the equivalent.

• The person provides documentation from a credible source (physician or other qualified professional) to substantiate the disability.

If the disability is open and obvious or if the person provides proof of receiving disability social security benefits or the equivalent, the Association will not need additional medical documentation, but may request additional documentation to determine whether the requested accommodation or modification is required to allow the person to overcome the impairment if the disability is not readily apparent.

If the disability is not open and obvious or if the person making the request does not receive disability social security benefits or the equivalent, the Association may request additional information regarding the nature of the impairment, how the accommodation or modification is necessary to overcome the impairment and whether there are other corrective measures that would serve the same or functionally equivalent purpose as the requested accommodation or modification.

***

(5-15-13)

QUESTION:

Does a condo unit owner have to wait until the minutes are approved at the next meeting before they can inspect them? The next meeting may not take place until months later - shouldn’t these minutes simply be marked "UNAPPROVED MINUTES" and then allow the unit owner access to inspect and copy these records if requested?

ANSWER:

There is no requirement as to when the minutes must be completed. If there are unapproved minutes that are prepared that are waiting for a vote to approve, the unapproved minutes can be inspected. The minutes should only reflect the business that is conducted at a meeting. Business is conducted in the form of motions. Therefore the minutes should merely restate the motions made, whether the motions received a second and the vote.

QUESTION:

My question is regarding harassment of a tenant by the President of the Condo Association. I am the owner of a condo in Boca Raton and have had a tenant renting the unit for the last five years. Over the last year the President of the Condo Board has become increasingly hostile to the tenant. The tenant has been a good tenant and I have never received any complaints (written or verbal) concerning any problems.

The latest issue with the President is she is telling condo residents what the tenant pays for rent and has told my tenant "she is lucky to pay what she pays." The President has also suggested to other residents the tenant might be running a business out of the condo unit because she receives "a lot" of packages. The tenant works long hours (away from the condo) and shops on-line because she does not have time to go to malls. This apparently bothers the President and recently someone opened one of the tenant’s packages. This was the final straw for my tenant!

My question(s) therefore is: How do I handle a complaint against the Board? Do I need to hire an attorney? Isn’t the rental costs of a unit confidential information? Is there any way to stop the Board from spreading false rumors about the tenant?

The President is infringing on my relationship with the tenant and is most likely going to cause the tenant to move when the current lease is up in six months. I feel powerless to complain to the Board because they back her totally and also feel if I complain it will only make matters worse for the tenant.

If you have any suggestions I would appreciate your response.

ANSWER:

Without the benefit of having heard both sides of the story, it sounds like the Board President may be overstepping her duties. There are many things you have described that are disturbing. Your tenant is entitled to the quiet enjoyment of the property and the actions of the President could be considered an interference of that right. If you are unable to reason with the Board or to run for the Board, your only alternative may be to hire an attorney to advise the Board that the actions that you have described go beyond what is reasonable. If the package that was opened came through the postal service your tenant may be able to make a complaint to the Postmaster since tampering with mail could have serous consequences.

 

***

(5-1-13)

QUESTION:

Today the unit owners of condominiums at the above 55+ complex, most of whom have actually already left for their summer homes in various parts of the US, Canada and Europe, received a letter from the Board of Directors informing them that the Board will meet on May 5th (thus giving us "the required 14 day notice"), to discuss and vote on changes to two Articles in the Declaration of Condominium.

(Considering that this change was already proposed at about the same time last year, at which one Board member rejected the plan, thus negating the changes, and that this year this particular Board member is "surprisingly" no longer on the Board and has been replaced by a member of the Board’s choice, it is doubtful that much discussion will take place and one must assume that whatever discussion there was, HAS already taken place. But not with the owners.)

The gist of the changes is twofold and will have an enormous effect on this community, in which now no owner is allowed to own more than two units. They are:

1. That the 2 units allowed to be owned by each owner be increased to 4 units.

2. That the 1 year after purchase during which a unit cannot be rented be decreased to 6 months.

Of course, each sale has to be approved by the Board as does each rental. And the Board is privy to information regarding foreclosures, while the rest of us are not. I don’t know how many units each Board member now owns except for one, who owns 3, which is against the regulations but was given approval by the board before last year’s plan surprisingly failed.

That the Board decides who cuts the grass and cleans the pool and who works in the office is fine, but can it really decide that 75% of the units can become rentals without a discussion, approval or a vote of the unit owners and even if it legal, what kind of morality is having this meeting when the owners have left?

Do we have any recourse? (Personally, I am writing a memo to those owners I find, creating a petition and having a meeting at my condo with those who are as concerned as I am, but I feel that it will all be hopeless and we will end up living in a slum with the values of properties diminishing to nothing within a couple of years, especially since they have hugely diminished through the housing crisis anyway.

ANSWER:

In order to amend the Declaration, the procedure outlined in the Declaration must be followed. It would be highly unusual for the Board to be able to amend the Declaration without a vote of the owners. If the Board is attempting to enact such a requirement by a rule or regulation, the authority to do so must be contained in the governing documents.

Three thresholds must be met when determining whether an Association has the authority to adopt or amend or enforce a particular covenant, rule or regulation. It must first be determined if the Board has the authority to promulgate rules and / or amend the Governing Documents which include Rules and Regulations.

The second step is to determine whether any of the proposed or existing rules or regulations conflict with the provisions of the Declaration, Articles of Incorporation, or Bylaws of the Association ("Governing Documents") or if the proposed regulation can be enacted via a rule or regulation. In the hierarchy of governing authority, rules and regulations are at the bottom. Therefore, if a rule conflicts with any provisions of the Governing Documents or any right reasonably inferred from the Governing Documents, it will be unenforceable.

The third and final step is determining whether the rules and regulations are reasonable. Courts will uphold rules as long as they are reasonable and bear a rational relationship to promoting the health, happiness and well-being of the members of the Association. In your particular situation, if the Declaration does not contain a provision to limit ownership or rentals, the Board cannot amend the Declaration without a vote of the owners. The Board cannot amend the Declaration by merely adopting a rule. Therefore, unless the restrictions are spelled out in the Declaration, there may not be any enforceable restrictions as to ownership or rentals.

 

***

(4-17-13)

QUESTION:

Our condo Association has scheduled the painting of all buildings (12) and carports. To do the screen enclosed balconies all screens will be removed and replaced at owner’s expense. My question is the whole project is to begin June 1, 2013 and continue for 5 months. This is during the designated Hurricane Season and given the buildings are 2/3 stories, there will be lots of scaffolding. Is there some ruling on projects this large being scheduled during this time period? Thank you.

ANSWER:

No, there is not a ruling that prevents projects for commencing during hurricane season. Your Board should have had this contract reviewed by its attorney and there should be provisions within the contract as to the responsibility of the contractor to prepare for a storm and to secure the construction material.

QUESTION:

Does the president of a condo board have the right to declare that no board meetings will take place until a certain date and that no committees may be formed until that date. Solely coming from the president not the entire board. Thank you.

ANSWER:

The authority of each officer and director is usually defined in the governing documents. In most associations, the president acts as CEO of the corporation. Unless the board, by a majority vote, limits the president’s authority, the president may in fact be authorized to determine when the next meeting will be held and may also have the authority to appoint committees. My suggestion is to start by reading the documents to determine the extent of the president’s authority.

QUESTION:

We have a discussion among board members regarding the board’s ability to make a rule giving egress through a Declaration granted (sic) limited common element (garage area) for all owners. In addition we want to restrict what can be stored in the limited common element in order to ease access. Would this rule be enforceable and not in conflict with the docs?

ANSWER:

The first person to ask is your association attorney who has familiarity with your governing documents. Without knowing the specifics of your associations governing documents, if the governing documents give the board the authority to pass rules regarding the use of a limited common element and the rule is not in conflict with the governing documents, the board would have such authority. For example, if the governing documents state that the owner may park a motor vehicle in his garage space, it would be difficult to limit what kind of motor vehicle is parked in the garage space. If the governing document does not identify the type of vehicle or excludes specific vehicles – and the board has the authority to enact rules, the board may be able to identify what cannot be parked in the garage.

 

***

(4-3-13)

QUESTION:

Can a condominium have size or weight limits on pets?

 

ANSWER:

It depends. If the Declaration is silent on pet restrictions but it has a provision that permits the Board to make rules and regulations, then the Board can regulate the size or weight of pets. If the Declaration has a provision allowing pets, then the Declaration should contain the restriction on size and weight of pets, unless the Declaration also contains a provision that the Board can make rules or regulations regarding pets. If the Declaration merely states that a unit owner can have a dog, the Association may have difficult time enforcing rule that limits size or a weight restriction.

 

QUESTION:

We recently moved to a 55+ deed restricted condominium in New Port Richey. Our condo association dues include a charge for basic cable. We must pay this charge even though we are only at the condo 3-6 months out of the year. We understand the condo association negotiated a bulk cable contract with the one company but we are concerned with paying charges for services on used. We have been told that this may violate a state or federal law but I have not been able to find a law that covers this issue. Why can we not turn the cable on and off like our other utilities when we come and go?

 

ANSWER:

The condominium association negotiated a Bulk contract that should be at a rate that is less than retail rates. The reason the rates are discounted is because the contract requires 100% participation. You are obligated to pay your pro-rata share, even though you are not in residence 12 months of the year. This is not a violation of any laws. In fact, 718.115 contains a provision that permits a condo to include the charges for cable as a common expense even if the Declaration doesn’t specifically authorize such a charge.

 

QUESTION:

I recently purchased a condo in an over 55 condo in St Petersburg. I recently attended my first annual meeting. I had several questions about the security and access to the pool area and liability issues because the pool is latched but unlocked. I was not answered other than it was a matter for the recreation committee and keys would be "very expensive." The minutes make no reference to my question or the need for the pool area to be secured. Two questions. Is an unlocked but latched gate considered secured? Should owner’s comments and questions about pool liability, and other questions about future budgets be included in the minutes?

 

ANSWER:

I would contact your local code enforcement agency to inquire whether the pool is in compliance with the local ordinances. The minutes of the meeting reflect the business that was conducted at the meeting. The business is conducted by motions and seconds. If your inquiry did not result in a motion, a second and a vote, then it would not be repeated in the minutes.

 

***

(3-20-13)

QUESTION:

Can a non-deeded spouse serve as President of the Association (1) The Board of Governors shall consist of three persons. Each member of the Board of Governors shall be either the owner of an Apartment, have an interest therein or in the event of Corporate Ownership, any officer or designated agent thereof.

ANSWER:

The governing documents, as quoted, include language that would permit a spouse of an owner to serve on the Board because it states that each member shall either be the owner or have an interest therein. The spouse of an owner would have an undeniable interest in the unit. As to whether or not the non-deeded spouse can serve as president – the Board elects its officers and if the person has standing to be on the Board then he or she has standing to be elected president.

QUESTION:

Does the board have the right to request my social security number on a form so that they can do a financial background check, even though I provided them with proof of my financial stability.

ANSWER:

If the governing documents permit the Board to approve a sale then the Board more than likely has the authority to request a financial background check. The board cannot rely on reports that have been secured for other purposes and it must request the information for itself. The Board must contract for their own report and that would require that the prospective purchaser fill out a form giving permission for the Board to request such information. The form would require that the prospective purchaser provide a social security number. Once the board receives the report it may not share the information with anyone, including the owner or the prospective purchaser, other than those making the decision as to approving or disapproving the sale. Often the owner of a unit or the prospective purchaser will request a copy of the report from the board and we would advise that the owner or prospective purchaser must request the information from the reporting agency, as the information secured by the Board is confidential and cannot be shared nor is it part of the official records of the association.

QUESTION:

Your web site is awesome! Thank you so much.

My question is this: We just discovered that a vote was taken in 2009 to continue staggered terms for the Condo’s Board of Directors. The vote passed with the appropriate quorum but nothing else was done. Do we need to redo all of this at this point? Nothing was amended or modified - wondered if we could just record the 2009 results now? Appreciate your help!!!

ANSWER:

Very often your Bylaws may contain language such as "The amendment shall be effective when the certificate of amendment and a copy of the amendment are recorded in the Public Records of County and State" If your documents contain such language, the amendment is not effective until it is recorded. The fact that the amendment was not recorded is not a fatal error and it can be corrected. First, make sure you have the documentation that supports that the amendment was passed by the appropriate method pursuant to the Articles of Incorporation and the Bylaws. After determining that the amendment was passed appropriately, record the certificate of amendment with the amendment and if the bylaws require that the amendment is effective upon recording you have an enforceable amendment.

Be very careful when amending Bylaws. In the hierarchy of governing documents, the Bylaws cannot amend a provision in the Declaration or the Articles of Incorporation. Very often the Articles of Incorporation contain language that conflicts with an amendment to the Bylaws. If that is the case your Bylaw amendment would be voided by the conflicting language in the Articles of Incorporation. For example, if the Articles state that the term of the board shall be one year, the amendment for two year terms in the bylaws would be trumped by the provision in the Articles of Incorporation that states the term is for one year.

 

***

(3-6-13)

QUESTION:

I have a 55 and older question. I am the owner, along with my uncle who is 60, of a condo in a 55 and older development. They are telling us that our renter, who is not 55, cannot occupy the unit due to his age. This seems funny to us as I have lived there for 8 months and nothing was said to me – I am not on the deed, and we know that there are other residents in the development who are not 55 with addresses and pictures; however one nosey neighbor complained and this set a huge chain of events. No other under 55 persons are being told to leave. Are we in violation due to our renter living there – he is a cousin of ours. Also – do we have a leg to stand on since they are not enforcing the rules everywhere? We thought the 80/20 rule applied to the entire development.

ANSWER:

If a community is a 55 and older community, the law requires at least one occupant to be over the age of 55. If the other residents in the same unit are older than the minimum threshold (usually 18) the community is in compliance with the requirements to maintain a 55 and over community. If your community is a 55 and over community a unit occupied by at least one resident over the age of 55 would not be considered when determining if the community is in compliance. The only units that would be considered as non-compliant are the units that are not occupied by anyone over the age of 55.

QUESTION:

Our newly elected board just decided to purchase three benches for our property with very little to no discussion from owners. They decided they were needed.

Can the board make purchases such as these without approval, and what is their limit if they can?

ANSWER:

This simple question is very complicated. A board of directors is elected to manage the affairs of the association. It is similar to running a business. Your governing documents define the limitations on board action. Usually a board has the authority to spend funds to replace existing items that fall within the budget without a vote of the owners. The board may also have the authority to spend funds up to a certain amount for a capital improvement without the vote of the owners. If the community is a condominium governed under Florida Statute 718 the board does not have the authority to make a material alteration to its common elements without a vote of the owners. Where this gets complicated is whether or not the benches are a material alteration of the common elements thereby requiring a vote of the members. Unfortunately – there is not a simple answer to this question. If the change materially changes a common element’s appearance or use, it’s a material alteration. In a condominium association, a material alteration must be approved by at least 75% of the total voting interests unless the governing documents provide otherwise. If the benches are permanently installed they may be defined as a material alteration of the common elements requiring a vote of the membership. In a homeowners’ association, the governing documents will control what needs to be done in the event the board makes any changes to the common areas.

 

***

(2-20-13)

QUESTION:

I would like to know when the latest date is to hold an annual budget meeting for a condominium. I was told it has to be hold no later than Nov. 15. I would like it to be the first week in Dec.

ANSWER:

Florida law does not require the budget meeting to be held before November 15. Unless the Bylaws for your association require the meeting to be held by November 15, there is nothing preventing you from having it the first week in December except that holding the meeting so close to the start of the budget year may make it difficult to accomplish the printing and delivery of coupon books. The law does require that this meeting is properly noticed. The association must provide each owner a minimum 14 day notice of any meeting where the annual budget will be considered and the notice must include a copy of the proposed budget.

QUESTION:

I am the treasurer of a 144 unit HOA with 5 seated board members. We have deed to 11 properties which we rent out 9. I as Treasurer want to evict a tenant and the president says it must go to a vote. I can’t find anything in our docs that pertain to "our HOA rentals". The vote could go 3 to 2 against me. I don’t chase for rent. The 3 board members who would vote to NOT EVICT say "any rent is better than no rent". Can I as Treasurer who has control of all monies received by HOA renters evict without the rest of the board going along with it?

ANSWER:

No, you cannot act independent of the board unless the Board of Directors has authorized such an action. If the Board of Directors agrees to allow one Board member to have absolute authority regarding evictions (at a duly noticed meeting) and you were selected to have such authority that you would be permitted to proceed with eviction proceedings. The reason your documents do not address rentals of association owned property is because it was never contemplated that the association would own units. Many associations have been forced to foreclose on the liens it has placed on units whose owners have failed to pay association dues. As to your role as treasurer you may be confusing custody with control. Although a treasurer is typically the officer assigned the primary responsibility of overseeing the reporting of the association’s finances, all association funds are under the control of the Board of Directors.

 

***

(2-6-13)

QUESTION:

There are three seats up for election in our condo association in Florida. Is there a limit as to how many people can run for the board? We have 298 units here.

ANSWER:

Pursuant to Florida Law, every member in good standing who is not more than 90 days delinquent in the payment of assessments may submit his or her intent to run for the board. While there is no limit as to how many residents can run for the board, there is a limit as to how many seats are on the board. The Bylaws of the association should contain a provision that sets the number of seats on the Board. Florida Statutes, Chapter 718.112 (2) (a) 1, provides: The form of administration of the association shall be described indicating the title of the officers and board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. In the absence of such a provision, the board of administration shall be composed of five members. . . In the event all 298 residents ran for the Board – only three can be elected.

QUESTION:

We recently purchased a condo in Daytona Beach Shores which has a 2 week minimum lease requirement, which we were fine with what we have done is rented to people who sign a 2 week lease, knowing they are not going to stay the whole time. The intent of the rental period is to keep the place from becoming a hotel which I appreciate. However, today our realtor, who is handling things for us, was told not so nicely that she as well as we would be charged with fraud if the people did not actually stay in the condo 14 days. The manager implied they would go in the condo and that "there better be luggage" in the unit for 14 days. First can they really legally require that our renter occupy the unit for the 2 weeks? It would seem that you cannot force people to stay somewhere. Again, we are not having it reoccupied at any point during the 14 days.

ANSWER:

Without reading your governing documents – it is difficult to answer this question. It seems the intent is as you have described – to prevent the condo from being occupied by transient guests on a daily basis. It would also seem that if you are not replacing the renter within the 14 day period you are abiding by the intent of the rule.

But then you admit that you are renting to people you know are not going to stay for a full two weeks. Since you are admitting to not conforming to the condo rules – it is difficult to defend you. If you don’t like the rules – you need to abide by them until they are modified. Perhaps you could work towards getting the rule modified to provide that a unit must not be rented unless a minimum two weeks have elapsed since the previous rental commenced. Same result – but you have managed to follow the rules.

One more note on the authority granted the association to enter your unit. Chapter 718.111 (5) states that "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 or units." Entering to do a bed check does not seem to fall under the right of access provided for under the law.

 

***

(1-23-13)

QUESTION:

Several unit owners at my condo have built private decks (common element property) adjoining their patios (limited common). I have never voted to approve such additions taking away common element property. I have emailed the board regarding this, but they did not respond. I am in the process of sending a certified letter. What should I be asking for besides unit owners, request to build, along with plans, board approval if any; check with city whether a permit was obtained? My understanding is that a 75% approval from membership must be obtained. Is that for each instance a unit owner wants to build? If there was no vote and approval of membership to allow this, can these owners be forced to remove their decks?

ANSWER:

The information you have listed should be sufficient to determine if there was a process that was followed in order to approve the addition of the decks. Before following through with the request you need to refer to the plat to see how the property in question is dedicated. Next you need to review the Declaration and determine if there is a vote or procedure in it that addresses this type of encroachment on Association property. If it is in fact association property and the process was not followed as per the governing documents or the law, the Association would have to request the removal and if the Unit Owner refused the matter would have to be litigated to determine what action is required.

Pursuant to Chapter 718, FLA. STAT., a vote of the owners is required when making a material alteration or substantial addition to Association Property. Pursuant to Chapter 718.103 (3) FLA. STAT., "Association property" means that property, real and personal, which is owned or leased by, or is dedicated by a recorded plat to, the association for the use and benefit of its members. Additionally, 718.113:(2)(a)provides in pertinent part as follows: . . . there shall be no material alteration or substantial additions to . . . 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.

 

***

(1-9-13)

QUESTION:

Our condominium association annual meeting is Wednesday. We have 80 units and a 5 member board. Our association has been in the midst of major conflict for three or four years. We have 9 people running for 5 board seats. Some of the 9 have indicated that they will withdraw and not serve if others (who have been "engaged in the battle") are elected. Here are my questions:

If 2 of the 5 top vote getters are elected and then withdraw or refuse to be seated:

1) Are the remaining candidates (the next high vote getters) automatically elected to fill those vacancies?

2) Or, does the board get to appoint people to fill the vacancies?

3) And, if so, which board – the outgoing/in place board that is in authority until the new board is duly elected? Or the new board?

I’ve researched this on-line and can’t find the answer. I would truly appreciate a quick response because our meeting is Wednesday morning.

ANSWER:

There are so many variables with elections – but this is fairly straight forward. Once the election has commenced the five elected board members become the board of directors. In the event a board member resigns – even at the annual meeting – the board will appoint a successor board member, unless your governing documents provide otherwise. Even if all but one board member resigns – the incoming board will appoint the new member(s). If your association documents permit a two year term – you will need to review your governing documents to determine if the appointed member serves for the term of the resigning board member or if the service ends at the next annual meeting. The short answer is the incoming board appoints a board member for any vacant position unless your governing documents provide otherwise.

QUESTION:

I would appreciate a legal opinion?

On August 15, 2012, notices were posted in our building, advising the owners that a meeting was to be held to vote on a 2 million dollar special assessment on Friday, August 31, 2012. . According to an affidavit signed by the Secretary of the Association and postmarks noted on mailed envelopes, the board mailed notices of the Special Assessment meeting on August 17, 2012. My question? Since the mailing was on the 17th of August, and a full 14 days are required in advance of a meeting, I feel that the first date a legal meeting could take place was on Saturday September 1, 2012. It is my understanding that the date of mailing August 17, is not one of the days to be counted towards the 14 day statuary requirement, and the meeting could not be held on the 14th day, since 14 days advance notice is required.

ANSWER:

First – and most important – the answers in this column do not constitute legal opinions – a legal opinion is rendered by the Association’s attorney or if on the behalf of an owner – by their attorney.

Your question can be answered by reading the Florida Statute 718.112, which states in pertinent part as follows: However, written notice of any meeting at which nonemergency special assessments, or at which amendment to rules regarding unit use, will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property at least 14 days before the meeting. [Emphasis added]. The notice was mailed on August 17 – therefore the first day the meeting could have been held was August 31, 2012. The law requires the notice to be mailed and posted 14 days in advance of the meeting – the date of the delivery of the notice does not matter. The notice is required to have been mailed (not received) 14 days in advance of the meeting. Your association properly noticed the meeting.

***


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.