ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

Last Updated 07/30/2022

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


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


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(7-28-22)

QUESTION:

Occasionally our board has something that comes up in between meetings. It is not possible to notice a meeting. Can the board act independent of a meeting?

 

ANSWER:

Yes. Unless the governing documents provide otherwise the board can act without a meeting, pursuant to Chapter 617.0821 of the Florida statutes if the board vote is unanimous. If the board is not in complete agreement the issue needs to be discussed at a duly noticed meeting. Action taken by written consent is effective when the last board members signs the consent.

 

QUESTION:

Our association carries all insurance required by the Florida Statutes. However, flood insurance is an option and not a requirement. The board voted to have a flood insurance policy without the vote of the unit owners. My question is: since flood insurance is an option and not a mandate, do the unit owners have a right to vote on this matter? Our association was built in 1972 and there has never been a flood in the area.

Thank you for your opinion.

 

ANSWER:

The board is granted its authority under the governing documents and if it is granted the authority to purchase insurance it has the authority to purchase flood insurance. Flood insurance may be required by a lender if a property if a property is located within a flood zone but rising water can occur anywhere, even outside a flood zone. Property insurance does not include coverage for rising water. Your board is acting within its authority if the governing documents permit it to purchase insurance and they are prudent in that they are protecting the association’s assets in the event there is a claim for damages caused by rising water.

 

***

(7-14-22)

QUESTION:

Hello, help! Recently the unit next to me was sold and the new owners plopped their 32-year-old daughter, boyfriend there to live. Our units are more like townhomes where the front doors are outside, and we share a walkway. They have guests & may I add not the most upstanding characters all hours of the night. They are outside in the driveway back & forth in & out all night long. From about 11pm to 5am. I swear there is illegal activity but can’t prove it. My condo said call police. I did. They said they’d patrol more. They don’t. I’m at my wits end and am afraid to come & go. Any advice?

 

ANSWER:

While the association may be responsible for what occurs in the common area it controls and /or who occupies a unit; it is not responsible to settle neighbor to neighbor disputes. You may use the provisions of the governing documents to support that what is going on is not permitted – and calling the police is an option, but you may have to seek legal counsel to assist you in bringing an action against the owner. Schedule a meeting with the supervisor of the road patrol to see if they can assist you first. Talk to the owner of the unit. Try to document the activity – or install security cameras. The more proof you have of the activity – the more likely you are to prevail.

 

QUESTION:

I have a new buyer who recently closed on a top floor condo in December. He purchased the condo from Zillow. Yesterday he received a letter from the HOA stating that is it was recently noticed that his unit has hardwood floors and hardwood floors are not allowed on top floor units, and so he must install carpeting for face fines or other actions. My buyer did not install the hardwood floors and the hardwood floors were not new when we toured the property so we can only assume that they were installed by a previous owner prior Zillow. Is there a grandfathering in for unapproved improvements of this sort? How would he be responsible for this?

 

ANSWER:

An association may not be able to enforce a restriction if it has ignored the violation for a number of years. If the violation occurred within the last five years – the association is in a good position to force the current owner to resolve the issue. If an estopple was requested, it is supposed to list all existing violations on the unit – but if the association was not aware of the flooring or the buyer did not request an estoppel it may end up a matter for the courts to decide.

 

***

(6-30-22)

QUESTION:

I live in a Condominium Association in Sarasota County Fl. I have concerns about various board activity. I sent a records inspection request in accordance with Florida statute. The board President emailed the entire community advising them that they could be facing special assessments because of my grandstanding. That I could not possibly even comprehend the records I "demanded". There was no demanding. I followed the statute to the letter and requested. Much of the community now view me as evil and costing them money.

Where do I go from here?

 

ANSWER:

An owner is entitled to make an official records request and to receive a response. It is unfortunate that you are being treated with disrespect merely because you requested records. Unfortunately, there are some that make records requests merely to harass or threaten the board. Communal living is not for everyone – and those with a low tolerance for complying with decisions made by others may never be content to live in a condominium. There are challenges that come with serving on a board and there are concerns that it will become more difficult to find dedicated individuals willing to serve in the future. In spite of the challenges, board members need to supply information when requested and it should be done efficiently and respectfully.

 

QUESTION:

The condominium in our Florida development had two members appointed to positions that are due to expire and be up for election this month. The Vice President filling one of those seats unexpectedly resigned verbally and the President immediately offered him another open seat that still a year left on its term, which he accepted. The seat had been left open for several months without soliciting for replacements. Is this end run around the election for the seat legal? Proper?

Any suggestions how to handle?

Very Respectfully

 

ANSWER:

There is nothing in the law to prevent a board member from resigning or being reappointed to the board. Although I would agree - this is an unusual way to fill a seat on the board. The position vacated by the resigning board member will require an election even if the board appoints someone to fill it as the appointee will merely serve the unexpired term. My suggestion is run for the board.

 

***

(6-16-22)

QUESTION:

Thank you very much for answering my question! I own a condo unit in New Smyrna Beach FL. I am currently renting out my unit. Is there any restriction to me leaving my car in the condo parking lot or using the community pool while I am renting? The parking spaces are not assigned and there has never been an overflow problem with too many cars and not enough spaces. I received a call today (Wed.) from our property manager who said the board was giving me until this Friday (3 days) to move the car or they would have it towed, at my expense. Thank you in advance for your help!

 

ANSWER:

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

 

QUESTION:

I manage a condo in Florida, and I have an owner that installed a doorbell camera on the exterior door. We do not currently have doorbells. The condo is a high-rise building, and the camera faces the hallway.

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

 

ANSWER:

In reading the section of the governing document you provided, this installation could be classified as a material alteration requiring a vote of the owners to approve. It may not be classified as such if you merely replaced an existing doorbell with the new doorbell. The section of the law that applies is 718.1132(2) )(a) which provides in pertinent part is as follows:

(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property, which is association property, except in a manner provided in the declaration . . . If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced.

 

***

(6-2-22)

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:

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

 

ANSWER:

Most bylaws provide for a person to be elected to the board as a director and the director’s vote for the officers at an organizational meeting. If an individual is elected to the board as a director, an individual can be removed as an officer with or without cause by a vote of the board, unless the bylaws are specific as to removal. If the members elected the person to be the vice president, the officer cannot be removed by the board and must be removed by the vote of the membership. Do not confuse removing an officer from his or her position with removing a director from the board. Even if the board removes a person as an officer, they are still a member of the board as a director. Only the community can vote to recall a director from the board.

 

***

(5-19-22)

QUESTION:

We live in one story villas in an over 55 community .Members of our Men’s and Ladies Clubs would like to volunteer to do repairs and maintenance around our community. Many owners have landscaping, mechanical and carpentry skills and we are also willing to sign waivers releasing the HOA from liability Since the condo collapse in Miami, our Board of Directors will not permit any work done by anyone not licensed in Florida. What work can we legally do and/or is there a way we can be permitted to do certain jobs?

ANSWER:

We agree with your board – if the community wants to volunteer for social events that is appropriate – but the maintenance of the association should be performed by licensed and insured professionals.

QUESTION:

We own a Florida condominium as a vacation home. When we bought our unit the condo restrictions regarding pool use was from 7:00 am through 10:00 pm. We have two young children and upon our recent return a new sign was posted at the pool saying the hours were from dawn until dusk. This infringes greatly upon our use of the common area and significantly impacts our use of the area with our family. What can we do?

ANSWER:

Your condominium is probably enforcing the requirements of the Florida Administrative Code that regulates the use of pools. Unless the facility has been issued written approval that the lighting at and in the pool is in compliance with 64 E-9.006(2)(c), F.A.C., the Association is not authorized to permit swimming at night. In order to receive approval, an association must demonstrate that they meet the lighting requirements as required by the code. The procedure for certifying that an association complies with the code is to provide the Department of Health with verification from a qualified engineer that the lighting at the pool complies with the code.

Unless or until your Association receives permission from the Department of Heath to operate the pool at night, we would stand by the Board’s recommendation that the pool close after dusk and before dawn. Please refer to 64 E-9.008 Supervision and Safety of the code:

(8) Night swimming – Pools shall not be open for swimming at night unless the requirements for lighting as specified in paragraph 64 E-9.006(2)(c), F.A.C., are met. Night swimming shall be considered one half hour before sunset to one half hour after sunrise.

64 E-9.006 F.A.C., Construction Plan Approval Standards (2) (c) Lighting – Artificial lighting shall be provided at all swimming pools which are to be used at night or which do not have adequate natural lighting so that all portions of the pool, including the bottom, may be readily seen without glare.

1. Outdoor pool lighting – Lighting shall provide a minimum of three foot candles of illumination at the pool water surface and the pool wet deck surface. Underwater lighting shall be a minimum of one-half watt per square foot of pool water surface area.

2. Indoor pool lighting –Lighting shall provide a minimum of 10 foot candles of illumination at the pool water surface and the pool wet deck surface. Underwater lighting shall be a minimum of eight-tenths watt per square foot of pool surface area.

 

***

(5-5-22)

QUESTION:

We are investing our reserves in a brokerage account – our auditor told us that there is nothing in Chapter 718 regulating where we invest. Is there any reason we should be concerned?

 

ANSWER:

Not sure why or if your auditor told you that you could put the money in anything but a guaranteed investment at a bank - but you are in likely violation of your governing documents and you are taking a risk that could be a breach of your fiduciary duty. MOST governing documents REQUIRE that the association funds are to be invested in a Bank.

If your governing documents provide that funds must be in a bank - an investment in stocks, bonds or mutual funds is NOT a bank and you must resolve this by moving your funds to accounts at a bank – not a brokerage account.

A question for you – what would happen if your fund values depreciated?

You would likely have crossed the line to personal responsibility for the decrease in values since your decision was in violation of the governing documents – and the board and anyone who advised you that it was ok to have a brokerage account could be personally liable for the loss.

You have a fiduciary duty to protect the assets of the corporation you were elected to represent, and you may not take any risk that could cause a loss of the corporation’s assets.

This very issue is likely a reason that there is requirement to take a board certification class and/or attest that you are familiar with the law and the provisions of the law and the governing docs.

QUESTION:

Has a change in Statute 718:113(4) regarding flags allowed been changed to now include POW/ MIA? This is an issue we’re dealing with, and some members say it has, though I can’t find when this happened for condominiums. If Statute 718:113(4) has been changed to now include the POW/MIA flag, could you let me know when it happened.

ANSWER:

The 2022 legislative session ended with only one proposed addition to 718 passing permitting a Space Force Flag to be flown by a resident. It is interesting to note that Chapter 720 – which governs homeowners associations - permits the display of a POW-MIA flag but there is not a similar provision in Chapter 718. Section 718.113 (4) was amended as follows: Any unit owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 4 1/2 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard, regardless of any declaration rules or requirements dealing with flags or decorations.

 

***

(4-21-22)

QUESTION:

Hello! Yet another material alteration vote question. Our governing docs do not specifically state anything about a material alteration vote. I have been told that it then defaults to 75% of the membership.

In our bylaws, though, it states: "A majority of the Unit owners’ total votes shall decide any questions unless the By-Laws or Declaration of Condominium provides otherwise, in which event the voting percentage required in the By-Laws or the Declaration of Condominium shall control."

Does this not mean we only need a majority of the votes to pass a material alteration? We have a difficult time getting residents to vote, but we are in a desperate need of updating our buildings. We would love to be able to use newer, more cost efficient and better value materials.

ANSWER:

You cannot mix up the provisions of the law in order to have a more favorable result. Specifically, Section 718.113 provides that at least 75% of the total voting interest must approve a material alteration unless the condominium documents provide for a different threshold. The different threshold the law is referencing is a different threshold to approve a material alteration. Therefore – a vote of 75% is required for a material alteration. Many communities have a difficult time getting enough owners to vote. The solution for your community would be to amend your governing documents to provide for a lower threshold to approve a material alteration and / or to forgo a vote if the material alteration is not significant. If the modifications are required because of code changes or if the components sought to be replaced are obsolete, the change may be allowed without the need for a vote of the members. It is best to confer with the Association’s attorney before making a determination as to whether a vote of the member’s is required.

QUESTION:

There was a question awhile back about condominium association’s wanting to charge owners for the right to rent their unit and you said no they couldn’t. 

We have the same issue down on Ft Myers Beach only it’s the Town of Ft Myers Beach.  They started off by charging us $50 a unit per year and it went up this year to $300 a unit per year.  My family owns four units so this is a little pricey and the only thing we get out of it is the right to rent.  I asked the mayor what this was for and he told me it was going for affordable housing for the residents that work on the beach.  I’m not sure if the hotels pay this fee, but I do know the rest of do. 

Is this legal for them to do this?

Thank you for everything you do!  I have learned a lot from this column!

ANSWER:

What I likely said was the ability to charge a transfer fee for a rental must be contained in the governing documents – and the law was recently changed to increase the amount to $150 per married couple or individual renting. The town has the authority to charge fees under its code – so it is likely they are charging a legitimate fee authorized by the code. If you inquire as to the authority – the town will likely show you under what provision of the code such authority exists.

 

***

(4-7-22)

QUESTION:

I am a board member for a condo association in Clearwater, Florida. I have an issue where we called a plumber in to work on a resident’s condo. The plumber said it was the resident’s responsibility and not the association. We as the association paid the bill and charged the owner back. The owner will not pay back the association. Can we charge late fee, lien and take the condo for nonpayment? I want a remedy besides small claims court. Can we add language in our rules and regulations or documents that would allow us to collect this money easily? Thanks, Sam

ANSWER:

This is not an easy yes or no answer. Your governing documents – specifically the Declaration define owner vs Association responsibility. The governing documents also identify what can be charged as an assessment for which you can add late fees, interest, and lien. There may also be a provision for a chargeback due to negligence. The only way to resolve this going forward would be to have your association attorney review your Declaration and add language to cover the association’s ability to collect from an owner. In reality – unless damage is being caused to another unit – the association should be sure it is its responsibility before engaging a professional to make repairs.

QUESTION:

I have a new buyer who recently closed on a top floor condo in December. Yesterday he received a letter from the HOA stating that is it was recently noticed that his unit has hardwood floors and hardwood floors are not allowed on top floor units, and so he must install carpeting for face fines or other actions. My buyer didn’t install the hardwood floors and the hardwood floors were not new when we toured the property so we can only assume that they were installed by a previous owner. Is there a grandfathering in for unapproved improvements of this sort? How would he be responsible for this? 

ANSWER:

If the buyer closed on the unit without requesting an estoppel from the association which would notify him or her of any outstanding fees due and any violations of the governing documents or maintenance issues – the buyer would likely be responsible. If the buyer requested an estoppel and the association failed to list the violation – the buyer may be able to argue he was not given notice of all violations prior to closing. It may end up being a matter that is decided by the courts – or perhaps the buyer can reach a compromise with the Association.

 

***

(3-24-22)

QUESTION:

I live on the second floor of a 55 plus condominium unit. Due to illness, I must move to the first floor in a different Association since none are available where I presently live. I am selling my unit. The Board has stated in writing that I may sell to a man who is 53 and still working in another state as long as he does not move into the unit until he is 55. That is fine with both of us. The problem: The Board demands that he sign a Judgment Consent Letter which they are unable to provide to me for signature, and the Association attorney does not return calls and I am simply lost as to what to do and where to get a copy of this document which I never heard of before. Can you please help me? My buyer is driving from Ohio to Florida to close on the deal but they simply will not assist me. Can you give me direction as to where I can obtain such a document? Our Board has never been helpful to anyone as you can ascertain from my email. Thank you so very much.

ANSWER:

Without a review of your association’s governing documents, only a general answer can be provided. Before a community can claim adult/senior status, the authority must be granted in the Declaration of Covenants. If your condominium is a senior/adult community, the law requires that 80% of the units must have at least one occupant that is 55 years of age or older to maintain its status as an adult/senior community. Some associations may have restrictions in the Declaration that have additional requirements – provided the requirements are not in conflict with the law.

If the association is not granted the right in its Declaration that allow it to operate as an adult/senior community under the Fair Housing Amendments Act of 1988, the Housing for Older Persons Act of 1995, and the Florida Fair Housing Act, it cannot impose restrictions on occupancy based on age.

Your association has requested that your buyer provide them with a document that will assure them that he will not occupy the unit until after he is 55 years of age. A judgment consent letter would not be the proper form for such a request, as a judgment consent letter is a method for avoiding a legal proceeding in regard to a debt that is owed.

Perhaps your association will accept a sworn affidavit from your buyer that he is on notice that his purchase is being approved by the association on the condition that he not occupy the unit until he is 55 years of age or older. A sworn affidavit is a written statement made by a person who is under oath to tell the truth about the facts and information contained in the statement. Usually, the affidavit must be witnessed and signed by a person who is legally authorized to administer oaths, such as a notary public. When a person signs a sworn affidavit, he or she is promising that anything contained in the statement is accurate and true. Effectively, it is the same thing as orally presenting testimony in court. If a person lies about the information contained in the statement, he or she could be prosecuted for the crime of perjury, which is lying under oath. If convicted, the person may be ordered to pay significant fines or may even be sentenced to time in jail. If this fails to satisfy the association, you should contact an attorney for advice.

 

***

(3-10-22)

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. 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.

 

***

(2-24-22)

QUESTION:

I have a problem with a dog barking in the unit above me. The owner has three dogs, that moved in after I bought my unit. The dogs bark consistently. I have complained to the board. And they don’t seem to do anything and the dog continues to bark, waking my wife and baby.

 Any suggestions?

ANSWER:

You should first ask your neighbor if they are aware that the dogs are barking. Many times, pets are left alone and the owner is not aware of the problem. If your neighbor is aware and still refuses to resolve the problem, most municipalities have an enforceable code that prohibits such a nuisance. Instead of contacting the Board, you may want to follow the procedure for you municipality. The municipal code will outline the requirements for providing a complaint about the barking dogs. For example, in Palm Beach County, a dog that "habitually barks, whines, howls or causes other objectionable noise resulting in a serious annoyance, shall be deemed to be committing an act in violation." The remedy is that an animal control officer, upon the receipt of two (2) sworn affidavits of complaint may issue a citation to the owner or custodian of any animal alleged to be in violation. One of the affidavits can be from your property manager, if he or she has heard the dogs barking, and one can be from you and / or one of your neighbors. While it is never pleasant to have to go through the process of issuing a formal complaint about a neighbor’s pet, it is sometimes the only way to get a resolution to a barking dog.

QUESTION:

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

ANSWER:

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

 

***

(2-10-22)

QUESTION:

Should the board use email as a method to communicate between meetings?

 

ANSWER:

The board is comprised of volunteers who are responsible to conduct the business of the corporation. Most associations have management, and the day-to-day matters should be handled by management. Any issues that arise that require board involvement in between meetings should be directed to the board liaison – not the entire board. If the matter is significant and pressing, a meeting of the Board should be called with proper notice – it should not be resolved by a flurry of emails between board members.

Boards are REQUIRED to conduct business at a duly noticed meeting and regardless of the good intentions – emails are often used to "conduct business".

There is so much chatter about if emails are accessible in an official records request and the real issue is not whether they are accessible – the real issue is that the board is communicating via email. We advise our clients not to use email beyond routine matters that would be communicated to the entire membership. Management should prepare a monthly report that is provided to each board member prior to a meeting and management should not communicate daily with the entire board. A liaison should be selected by the board, usually the president, to communicate with management as required between meetings. Regardless of whether emails are accessible in an official records request – they are discoverable in litigation. Deleting emails that are discoverable in litigation could be considered evidence tampering. Service on the board is a volunteer position and it should not become a full-time job nor should a board member incur personal liability because of his or her service. Board members can create more issues than they solve if they continue to insist on being in the loop on a daily basis.

 

***

(1-27-22)

QUESTION:

Can a duly elected COA board member hold more than one officer position (i.e.. Treasurer and Secretary) if the Bylaws do not specifically state that they can or cannot. We have five elected board members but no one wants to be secretary and our Treasurer would like to do both.

ANSWER:

Unless prohibited by the condominium documents, yes. Section 718.112(2)(a)1 of the Florida Condominium Act provides that a condominium association’s bylaws must provide for the title of the officers and specify their powers, duties, manner of selection, removal, and compensation, if any. If the bylaws are silent with respect to these items, this same section provides default provisions that are deemed to be included in the bylaws. The statute also states that the association "shall have a president, secretary, and a treasurer, who shall perform the duties of such officers customarily performed by officers of corporations," who serve at the pleasure of the board, and without compensation unless otherwise provided in the bylaws. The board of administration is the same as the board of directors. Section 617.0840(4) of the Florida Not For Profit Corporations Act (which applies to most condominium associations) specifically provides that same individual may simultaneously hold more than one office in a corporation, unless prohibited by the bylaws. Many governing documents do not permit the president to also serve as the secretary. One person serving as the secretary and the treasurer is usually not prohibited.

 

QUESTION:

I am writing this email to seek your help with regard to HOA issue.I am not a US citizen nor a US resident. I am an investor and own properties in Florida, taken care by property management company in Florida. Recently HOA have made it mandatory for me as a property owner to pay for bulk services (internet/cable) even though I do not use them. What’s worst, this service is tied to my HOA acct. I do not live in US nor use this service. This property is not a condo, it a single-family house. Can you please help in resolving this issue with HOA?

ANSWER:

Chapters 718, 719 and 720 of the Florida Statutes have provisions permitting the board to enter into a contract for the provision of Bulk video and Internet – even if it is not specifically authorized in the governing documents, Many tenants view the inclusion of Bulk services as a bonus. If you are renting the units- your tenants will be responsible for any equipment required and also additional retail services for which that subscribe to in addition to the Bulk contract.

718.115 Common expenses and common surplus.—(1)(d) If provided in the declaration, the cost of communications services as defined in chapter 202, information services, or Internet services obtained pursuant to a bulk contract is a common expense. If the declaration does not provide for the cost of such services as a common expense, the board may enter into such a contract, and the cost of the service will be a common expense.

719.107 Common expenses; assessment.—(1)((b) If so provided in the bylaws, the cost of communications services as defined in chapter 202, information services, or Internet services obtained pursuant to a bulk contract shall be deemed a common expense, and if not obtained pursuant to a bulk contract, such cost shall be considered common expense if it is designated as such in a written contract between the board of administration and the company providing the communications services as defined in chapter 202, information services, or Internet services.

720.309 Agreements entered into by the association.—(2) If the governing documents provide for the cost of communications services as defined in s. 202.11, information services or Internet services obtained pursuant to a bulk contract shall be deemed an operating expense of the association. If the governing documents do not provide for such services, the board may contract for the services, and the cost shall be deemed an operating expense of the association but must be allocated on a per-parcel basis rather than a percentage basis, notwithstanding that the governing documents provide for other than an equal sharing of operating expenses

 

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(1-13-22)

QUESTION:

My husband and I recently purchased a condominium in Palm Harbor FL. There are approximately 40 units and we were recently told at our meeting that the original condominium documents never had a declaration page done. The reason it came up was we wanted to amend our documents so that the voting would be 75% of the attending owners. My question is this. What needs to be done to get a declaration page for the original documents and what is the typical cost. I am not feeling confident with our existing board president that he is inquiring properly or is withholding this information to owners.

 

ANSWER:

It is not clear what you mean by a declaration page – a condominium cannot exist without a declaration and the book and page of the original declaration for a condominium is usually part of the legal description for each condominium unit. A Homeowners association usually has a declaration of covenants. Declarations are recorded in the official records of the county where the property is located. Perhaps your association has not researched the official record for your county to locate the original declaration. A Co-Operative does not have a Declaration – it usually only has bylaws – since it involves the ownership of shares in a corporation. The first step is to locate the governing documents and all amendments before attempting to amend the Declaration. The clerk of the county where you are located may be able to assist you in finding the recorded documents or you could request that a title company provide you with the existing documents.

 

QUESTION:

Ms. Konyk, thank you for taking your time answering questions about the condo association rules. Our association was created in 1976. It consists of a number of 2 story buildings. We have exterior stairs going to the second level. Many wooden stairs in a constant need of repair due to elements. There is a stucco half-wall and railing or it can be a full stucco wall. Originally they were built not as wide as the current codes require. The contractor claims that if he will do any repairs/replacement it has to be up to code. This means the stucco walls would have to be removed, which will lead to serious architectural changes and a required approval of the membership. Is it possible for the old association as our to repair stairs in kind without a need to widening them to a required 36 inches? Your answer is highly appreciated. If this was discussed earlier in the legal community, please point me in the right direction.

Thank you.

 

ANSWER:

Whether you can repair the stairs without making them code compliant is a question for the building department. The repairs you are describing will require a permit and if the building department deems that a modification is required to be code compliant, a vote of the owners is not required. The change would not be considered a material alteration if required for the stairs to be complaint with the current code.

 

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12-30-21

QUESTION:

I am on the ground floor, and I have a leak coming from the 2nd floor. The person upstairs brought in her plumber and fix her toilet seal because it was believed it was coming from there. However, they had to rip my ceiling because it was still happening. Her plumber showed us that it was coming from the supply line in the wall. The Association told me that the upstairs owner is responsible for replacing it. It is to my understanding that we the owner is not responsible for it. My apartment is a mess because the leak has now spread to a bedroom. The upstairs owner said she is not fixing it. Who is responsible? That’s my question.

 

ANSWER:

In a condominium, the problems stemming from damage because of water intrusion are often magnified. Water can migrate from unit to unit, doing damage to the property of numerous owners within a brief time span. To further complicate matters, the maintenance responsibilities and insurance for casualty loss responsibilities are divided between unit owners and the condominium association by the governing documents and Florida law.

In determining responsibility for issues involving water intrusion we determine if the damage was caused by a maintenance issue or a casualty loss for which the Association is required to carry insurance. The duties and liabilities are not always clear, and the proper method of analyzing liability can be confusing. There are, however, a few principles that if properly applied, will clarify the

If the damage was caused by a maintenance issue, we must first look to the condominium documents to determine who is responsible for the repair costs. Assume we have drywall within a unit that was damaged over time by a persistent water leak. This is a clear maintenance issue. If damage is caused by this leak to a common element, the maintenance responsibility will fall on the condominium association. If the damage is caused to something that is a part of the unit, such as the cabinets or the personal property of a unit owner, the responsibility for repair will usually fall on the unit owner where the damage has occurred.

In Florida, responsibility for repairing and restoring property damaged by a casualty loss rests with the party who insures it. Who insures what part of a condominium is not determined simply by whether the element in question is a part of the unit or a part of the common elements. Florida statutes requires that a condominium property insurance policy must cover "[a]ll portions of the condominium property as originally installed," except for, "all personal property within the unit ... floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components." (See, §718.111(11), Fla. Stats.)

Pursuant to the provisions of Fla. Stat 718.111 (11), a condominium association’s members may vote, by the approval of a majority of the total voting interests, to opt-out of the provisions of paragraph (j) for the allocation of repair or reconstruction expenses related to a casualty loss and instead allocate repair or reconstruction expenses in the manner provided in the declaration as originally recorded or amended.

 

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(12-16-21)

QUESTION:

I have a problem with a dog barking in the unit above me. The owner has three dogs, that moved in after I bought my unit. The dogs bark consistently. I have complained to the board. And they don’t seem to do anything and the dog continues to bark, waking my wife and baby.

Any suggestions?

ANSWER:

You should first ask your neighbor if they are aware that the dogs are barking Many times pets are left alone and the owner is not aware of the problem. If your neighbor is aware and still refuses to resolve the problem, most municipalities have an enforceable code that prohibits such a nuisance. Instead of contacting the Board, you may want to follow the procedure for you municipality. The municipal code will outline the requirements for providing a complaint about the barking dogs. For example, in Palm Beach County, a dog that "habitually barks, whines, howls or causes other objectionable noise resulting in a serious annoyance, shall be deemed to be committing an act in violation." The remedy is that an animal control officer, upon the receipt of two (2) sworn affidavits of complaint may issue a citation to the owner or custodian of any animal alleged to be in violation. One of the affidavits can be from your property manager, if he or she has heard the dogs barking, and one can be from you and / or one of your neighbors. While it is never pleasant to have to go through the process of issuing a formal complaint about a neighbor’s pet, it is sometimes the only way to get a resolution to a barking dog.

QUESTION:

Our Board of Directors meets every month. After the recent election, the new President of the Board stated that the "minutes of the last meeting will not be read", as they are posted in the Office. Can the President of the Condo make this rule? It seems as if he is trying to hide something.

ANSWER:

The reading of the minutes of the previous meeting may be either read or waived at each meeting. The minutes of the meeting, whether in final format or otherwise, are part of the official record of the the association and must be available to the membership for inspection and copying. Your association has more than complied with the requirements of availability of the minutes by making them available in the association office. If your Association is posting the minutes at the office, they have established a basis for waiver of the reading of the minutes at each meeting, but they have not eliminated the necessity of bringing it up at each meeting. Your Association documents may or may not contain additional requirements for the posting and / or reading of the minutes.

Additionally, the minutes of the membership meeting serve as the permanent record of the proceedings. The minutes are not required to be an elaborate account of every discussion or debate that took place at the meeting, but should identify relevant information such as location, time, presiding officer and the exact quorum in attendance. Florida Statute 718.111 requires that the minutes be retained forever. Their content should include any motions made, the result, and other pertinent items of business.

 

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(12-2-21)

QUESTION:

Thank you for your very informative website dealing with questions relating to condominium associations in Florida.

My question concerns material alterations to common elements in a multi–Condominium Association composed of VI Phases and a total of 313 voting members.

In each of our Declaration(s) of Condominium (all VI Phases) the only reference to material alterations is the following:

"Material alteration of or substantial additions to the common elements including the purchase of real property by the Association may be effectuated by vote of the Board of Directors."

There is no mention of a % requirement for a vote of the membership.

Based on this sole phrase in our documents our Board of Directors has taken the position that they have complete authority to decide on making any type of alteration (regardless of financial limitation) to the common elements without member vote and subsequently imposing a special assessment to cover the cost of that alteration.

If this interpretation (by the Board) be true then the members would never have a voice in approving or rejecting any material changes to the common elements and therefore be subject to the actions of any rogue board even if all the members were against that alteration.

This interpretation of the term "effectuated" just seems to be contrary to what is expressed in F.S. 718.113 (2)(c). i.e. …..

"If the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein do not specify the procedure for approving an alteration or addition to association real property, the approval of 75 percent of the total voting interests of the association is required before the material alterations or substantial additions are commenced." Your comment is most anticipated and appreciated.

ANSWER:

Regarding material alterations, there are different requirements for membership involvement depending on the verbiage in the governing documents. Some are silent – therefore the law provides for a vote of 75% of the membership to approve. Others state a dollar amount that can’t be exceeded without a vote of the membership or a percentage of less than 75% to approve. All of these different requirements are enforceable – provided the provision is followed. Your Declaration does specify the procedure for approving a material alteration by stating it is effectuated by vote of the Board – meaning a vote of the members is not required. Synonyms for effectuate include: accomplish, execute, conduct, engineer , perform, cause - which indicate that the material alteration does not require a vote of the membership. If the material alteration requires a special assessment and there is a requirement for a membership vote to approve a special assessment – the vote of the members would be required to fund the material alteration.

QUESTION:

I’m the treasurer on my condominium board. We have 63 units. Half are stand-alone villas with attached garages and half are groups of 2 to 3 townhomes sharing a roof and with separate unattached assigned garage buildings. The townhome section currently has trash can corrals they share and we have paid a guy for years to take the cans out on trash day and bring them back in. He also blew the leaves out of the areas. He has resigned and now we are questioning why all 63 units should pay for this trash service when only half benefit. The stand-alone villas each store their own trash cans and roll them to the street themselves. Is it legitimate to have fees charged to all that only benefit half the residents? Appreciate all the knowledge I get reading your advice!

ANSWER:

Before stopping this service – it would be prudent to research why it has been offered and even for how long. If the governing documents are silent – there may have been something in the prospectus provided by the developer addressing this service. It may have been required due to the fact that the placement of the trash cans is different than merely being near a driveway so that there is a significant difference in the distance to provide for pickup. It is certain to cause a lot of disagreement within the community if the service is stopped. Regarding assessing the entire membership for this service – unless the governing documents provide otherwise all owners must be assessed the proportionate share determined by the governing documents. Therefore – if the governing documents do not allow for the association to charge a different percentage of the overall budget it cannot be done unless 100% of the membership votes to approve the change.

 

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(11-18-21)

QUESTION:

Six of nine Board seats recently came up for election. Between existing members and new candidates, only five people ran for the six seats. In that case no election is held but a question arose as to how to fill the sixth seat. I believe and suggest that Chapter 718.112 (2)(d)(1) applies. This section states:

"(i)f no person is interested in or demonstrates an intention to run for the position of a board member whose term has expired according to the provisions of this subparagraph, such board member whose term has expired shall be automatically reappointed to the board of administration and need not stand for reelection.

A Board member whose term expired was willing to serve. The board asserted that this was not correct and that Chapter 718.112(2)(d)(8) applied providing that the Board vacancy could be filled by a vote of the remaining Board members appointing an eligible person for the balance of the unexpired term. I believe this is in error because there is no unexpired term and because Section 718.112 (2)(d)(1) covers this very instance. The Board said this was wrong and they said this was confirmed by an opinion from the attorney for the Association, who was paid for by the Association. In your opinion who is correct.

ANSWER:

The attorney is correct. In this case, you had interested parties that ran for the board.

Let’s take a look at two scenarios that will have different results.

Scenario One: There are six available seats on the board and five candidates file the necessary paperwork to run for the board. It is not necessary for the members to vote, since there were less people running for the board than available positions. The members that timely submitted an intent to run will be seated at the annual meeting. The new board is entitled to appoint a new member to the board. The board could consider the existing member that did not file to run or they could appoint someone else in the community that is willing to serve.

Scenario Two: There are six available seats on the board. There are not any candidates that have filed the necessary paperwork to run for the board. In this example, since there is not one interested party running for the board, then the members whose seats are up for election would "roll over" and there would not be an election.

If one of those members did not want to continue serving on the board, he or she could resign. The existing board could appoint someone to fill that vacated position.

 

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(11-4-21)

QUESTION:

My condo association is trying to change the rental restrictions for our condo. Going from no restrictions to minimum 30 days. In reading FS 718.110 (13) it looks like we will not be affected by the amendment if we vote "no" or "abstain" from voting in favor of the amendment. The condo association is saying that even if we vote "yes" we are still grandfathered in and won't be held to the new restrictions. Is there interpretation of the statute accurate in your opinion?

ANSWER:

It depends on how the amendment is written – if it says that those that purchase after a specific date are affected – only those owners will be impacted. If it is silent than you are correct and only those voting yes for the amendment will be subject to the provisions of the amendment– provided the amendment is ratified by a sufficient number of votes.

QUESTION:

Members of our condo association (Brevard County, Florida) have requested permission to put in electrically actuated shutters. At first the board denied this request. They then put the issue to a vote of the entire membership. The outcome of the membership vote was 29 For, 16 Opposed and 7 No Reply.

This of course was not the outcome the board wanted and they contacted their attorney. The attorney informed the board that the shutters were not a "material change" and therefore did not require a membership vote. Now the board is stating that there is a "need to draft an amendment to our documents." They do not specify which documents.

My question is, after the board initiated a membership vote, can they then ignore the vote in hopes that the next vote will meet their goals.

ANSWER:

The board must follow the advice of its professionals i.e. the attorney for the Association. Section 718.113 (5) Florida Statutes does provide guidance regarding hurricane protection. The pertinent provisions require that each board of administration of a residential condominium shall adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include color, style, and other factors deemed relevant by the board. All specifications adopted by the board must comply with the applicable building code. If approval is required by the documents, a board may not refuse to approve the installation or replacement of hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection by a unit owner conforming to the specifications adopted by the board.

 

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(10-21-21)

QUESTION:

I live in a condominium unit in a 55 and older community. The Association recently installed a new sign at the pool and it includes some new rules that were not on the old sign. One of the new rules that concerns me is a restriction on children 3 and under using the pool. My only grandchild will be coming to visit with my son and daughter-in-law in a few weeks. Does this new rule mean that he will not be able to get into the pool with me? Is this legal?

 

ANSWER:

If a person believes that there are different terms and conditions or the signage or rules express a preference for or limitation on the basis of a protected class ( race, color, gender, national origin, religion, disability, familial status, sexual orientation, age, marital status or gender identity or expression) they may file a complaint with the OFFICE OF EQUAL OPPORTUNITY (OEO), who will likely determine that the statement violates the law. The Pool Rules and signage cannot limit or restrict use by babies, toddlers, or others. If the restriction says that babies in diapers cannot use the pool that rises to the level of an actionable violation of the laws. The appropriate signage should state "INCONTINENT INDIVIDUALS MUST WEAR SWIM DIAPERS WHEN ENTERING THE POOL

Unfortunately, boards of directors are now more frequently facing discrimination accusations about the appropriateness of these rules and regulations by their membership under the Fair Housing Act. The Fair Housing Act. The FHA, which is codified at 42 U.S.C. §§ 3601 – 3619, was originally adopted in 1968 and prohibits discrimination based on race, color, religion, sex, or national origin. The FHA was amended in 1988 to add protected classes of disability and familial status. The U.S. Department of Housing and Urban Development ("HUD") administers and enforces violations of the FHA.

These provisions preclude discrimination on the basis of "familial status", which means discrimination against families with children. Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18. Thus, HUD will claim an association is violating the FHA if an association treats families with children differently than other residents in the community, either through direct discrimination or discriminatory enforcement of an association’s rules or restrictions.

Litigation under the FHA. Since the 1988 amendments, there have been a number of lawsuits that have challenged swimming pool rules on the basis that they discriminate on the basis of familial status. These cases have held that restrictions on children’s use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.

As set forth above, most association rules and regulations are drafted to address concerns about safety and health, which have typically resulted in boards adopting rules that limit children’s use of the pool. Although keeping the pool safe and sanitary presents a compelling business necessity for associations, the FHA requires that boards come up with more inventive ways to address their safety and sanitation concerns than simply forbidding minors under a certain age or non-toilet trained children from using the pool. The desire of an adult community to restrict children from the pool because adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children is understood. Unfortunately the protections under the Fair Housing laws apply only to unit occupancy – the common areas are still subject to age discrimination complaints.

 

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(10-7-21)

QUESTION:

I live in a condo in Lauderdale lakes that is about 30% Canadian owners. I’m in phase one of five phases. We have an individual board for each building. There are 8 buildings that make up phase 1, Which has an association for all the buildings. Each building has its own board with, President, vice president, secretary, and treasurer. My building pays someone out of our maintenance fees to check on vacant apartments every two weeks for those that leave for the summer! Is this legal? My question is, can my building use maintenance money to pay for checking apartments for owners that are gone for the summer. I live here year-round and I don’t think I should have to pay for checking apartments of owners who don’t live here year-round. I thought that if you leave your apartment empty, it’s up to you to have someone check the apartment while you’re gone at your own expense. Our building board is mostly Canadian also. Thanks in advance for any help you can render!

ANSWER:

Common expenses are defined in the governing documents of the condominium and if the governing documents fail to list inspection of units when owners are absent as a common expense of the Association, the Association cannot continue this practice. If such is not delineated as a common expense of the Association, it is a violation of the Condominium Act. Pursuant to 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:

I live in a condo in Naples, FL. I received permission to replace the tile on my balcony. Subsequent to my contracting for the work, I was informed by the building manager that I had to waterproof the concrete slab at my expense prior to the installation of the new tile.

The Declaration of Condominium clearly specifies the balcony as a Limited Common Element. 

I have read and re-read the Declaration, researched Florida law regarding the maintenance of  "Limited Common Elements" and have found nothing that states that I should be responsible for that cost. Waterproofing is intended to preserve the integrity of the concrete slab and, by default, is a responsibility of the Association.

ANSWER:

It is likely that the installation of the tile is creating a condition that requires you to waterproof the balcony. Improperly installed tile can contribute to standing water and also damage to the concrete slab – therefore a condominium is wise to require it to be installed in a manner that does not interfere with the integrity of the structure.

 

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(9-23-21)

QUESTION:

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

ANSWER:

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

The board must recognize the importance of its members avoiding personal liability. One area that is often overlooked by association directors is the review of contracts. Often this is done in an effort to "save" the association money. Our experience proves that it is imperative that the directors get a legal review of most contracts prior to execution. It is far costlier to rescind a "bad" contract than it is to review the contract to make sure that it is in the association’s best interest.

QUESTION:

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

ANSWER:

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

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

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

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

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

 

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(9-9-21)

QUESTION:

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

ANSWER:

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

BOARD OF DIRECTORS

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

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

PRESIDENT – The President will serve to:

• Chair board meetings

• Act as a Liaison between:

• Management

• Board members

• Association attorney

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

• Prepares board meeting agenda for board review/approval

• Calls regular and special meetings of the board

 

VICE PRESIDENT – The Vice President will serve to:

• Support the President on an as-needed basis

 

TREASURER – The Treasurer will serve to:

• Present Treasurer report at board meeting

• Act as Financial Liaison

• Board President

• Accounting Personnel

• CPA

• Banking Institution

• Be a signer of association checks

• Review monthly financial statements and delinquency assessment report

• Work with accounting personnel to draft proposed annual operating budget

 

SECRETARY – The Secretary will serve to:

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

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

 

DIRECTOR – The non-officer Directors will serve to:

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

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

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

 

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(8-26-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

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(8-12-21)

QUESTION:

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

Thank you for any assistance in clarifying.

ANSWER:

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

QUESTION:

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

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

 

ANSWER:

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

 

***

(7-29-21)

QUESTION:

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

ANSWER:

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

QUESTION:

I have a problem with a dog barking in the unit above me. The owner has three dogs, that moved in after I bought my unit. The dogs bark consistently. I have complained to the board. And they don’t seem to do anything and the dog continues to bark, waking my wife and baby.

Any suggestions?

ANSWER:

You should first ask your neighbor if they are aware that the dog(s) are barking. Many times pets are left alone and the owner is not aware of the problem. If your neighbor is aware and still refuses to resolve the problem, most municipalities have an enforceable code that prohibits such a nuisance. Instead of contacting the Board, you may want to follow the procedure for your municipality. The municipal code will outline the requirements for providing a complaint about the barking dog(s). For example, in Palm Beach County, a dog that "habitually barks, whines, howls or causes other objectionable noise resulting in a serious annoyance, shall be deemed to be committing an act in violation". The remedy is that an animal control officer, upon the receipt of two (2) sworn affidavits of complaint may issue a citation to the owner or custodian of any animal alleged to be in violation. One of the affidavits can be from your property manager, if he or she has heard the dog(s) barking, and one can be from you and / or one of your neighbors. While it is never pleasant to have to go through the process of issuing a formal complaint about a neighbor’s pet, it is sometimes the only way to get a resolution to a barking dog.

 

***

(7-15-21)

QUESTION:

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

ANSWER:

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

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

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

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

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

There are exceptions to the term limit restriction.

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

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

 

***

(7-1-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

ANSWER:

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

 

***

(6-17-21)

QUESTION:

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

ANSWER:

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

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

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

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

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

 

***

(6-3-21)

QUESTION:

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

ANSWER:

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

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

BudgetsandReserveSchedules.pdf

QUESTION:

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

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

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

ANSWER:

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

 

***

(5-20-21)

QUESTION:

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

ANSWER:

Yes, you must provide a key to the association, even though Chapters 718 and 719, Florida Statutes, do not specifically address the issue of providing keys to the association. The association has the irrevocable right of access to each unit during reasonable hours when necessary, for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association or as necessary to prevent damage to the common elements or to a unit.

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

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

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

 

***

(5-6-21)

QUESTION:

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

ANSWER:

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

QUESTION:

I have a problem with a dog barking in the unit above me. The owner has three dogs, that moved in after I bought my unit. The dogs bark constantly. I have complained to the board. And they don’t seem to do anything and the dog continues to bark, waking my wife and baby.

Any suggestions?

ANSWER:

You should first ask your neighbor if they are aware that the dogs are barking Many times pets are left alone and the owner is not aware of the problem. If your neighbor is aware and still refuses to resolve the problem, most municipalities have an enforceable code that prohibits such a nuisance. Instead of contacting the Board, you may want to follow the procedure for you municipality. The municipal code will outline the requirements for providing a complaint about the barking dogs. For example, in Palm Beach County, a dog that "habitually barks, whines, howls or causes other objectionable noise resulting in a serious annoyance, shall be deemed to be committing an act in violation." The remedy is that an animal control officer, upon the receipt of two (2) sworn affidavits of complaint may issue a citation to the owner or custodian of any animal alleged to be in violation. One of the affidavits can be from your property manager, if he or she has heard the dogs barking, and one can be from you and / or one of your neighbors. While it is never pleasant to have to go through the process of issuing a formal complaint about a neighbor’s pet, it is sometimes the only way to get a resolution to a barking dog.

 

***

(4-22-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(4-8-21)

QUESTION:

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

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

Any clarification would be appreciated. Thank you

 

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(3-25-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

What law covers that?

ANSWER:

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

 

***

(3-11-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

ANSWER:

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

 

***

(2-25-21)

QUESTION:

Hi there,

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

Thank you!

ANSWER:

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

QUESTION:

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

ANSWER:

Right! – In general - a rule enacted by the Board cannot modify a provision that has greater authority such as in the Bylaws or the Declaration. It is important to understand the hierarchy of governing authority for community associations. They are, in order of greatest authority to least authority, 1) Federal Law, 2) State Law, 3) Local Ordinances, 4) Declaration of Condominium (or Covenants for a homeowner’s association), 5) Articles of Incorporation, 6) Bylaws, 7) Rules and Regulations and 8) Robert’s Rules of Order. An association cannot amend its governing documents if the amendment will conflict with a provision or a law that has a higher authority. For example, a rule or regulation enacted by the Board cannot attempt to modify a provision in the Declaration, unless the Declaration has a provision permitting such a modification by a rule.

 

***

(2-11-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

***

(1-28-21)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(1-14-21)

QUESTION:

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

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

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

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

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

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

ANSWER:

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

QUESTION:

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

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

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

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

ANSWER:

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

 

***

(12-31-20)

QUESTION:

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

ANSWER:

Chapters 718 and 719, Florida Statutes, do not specifically address the issue of providing keys to the association. The association has the irrevocable right of access to each unit during reasonable hours when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association or as necessary to prevent damage to the common elements or to a unit. Even if your declaration does not specifically requires you to provide a key – you are required to provide access.

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

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

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

QUESTION:

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

ANSWER:

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

 

***

(12-17-20)

QUESTION:

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

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

Respectfully submitted.

ANSWER:

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

QUESTION:

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

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

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

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

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

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

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

ANSWER:

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

 

***

(12-3-20)

QUESTION:

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

ANSWER:

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

QUESTION:

Thank you for the wealth of knowledge you share!

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

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

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

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

Thanks to advice.

ANSWER:

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

 

***

(11-19-20)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(11-5-20)

QUESTION:

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

ANSWER:

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

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

QUESTION:

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

ANSWER:

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

 

***

(10-22-20)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

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

***

(10-8-20)

 

QUESTION:

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

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

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(9-24-20)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(9-9-20)

QUESTION:

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

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(8-26-20)

QUESTION:

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

ANSWER:

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

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

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

QUESTION:

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

ANSWER:

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

 

***

(8-12-20)

QUESTION:

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

ANSWER:

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

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

QUESTION:

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

ANSWER:

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

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

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

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

 

***

(7-29-20)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(3-25-20)

QUESTION:

What precautions should we be following in these uncertain times?

ANSWER:

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

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

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

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

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

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

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

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

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

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

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

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

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

Follow established CDC protocols and recommendations.

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

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

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

 

***

(3-11-20)

QUESTION

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

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

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

ANSWER:

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

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

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

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

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

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

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

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

 

***

(2-26-20)

QUESTION

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

ANSWER:

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

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

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

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

QUESTION:

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

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

ANSWER:

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

 

***

(2-12-20)

QUESTION

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

ANSWER:

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

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

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

 

***

(1-29-20)

QUESTION

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

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

***

(1-15-20)

QUESTION

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

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

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

We have reasons to believe that not to be true.

Can you please advise us on this matter?

ANSWER:

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

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

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

QUESTION:

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

ANSWER:

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

 

***

(1-1-20)

QUESTION

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.

 

***


NOTE:  The answers above are for general information only and are not intended as legal advice to your particular association.  The individual situation of any association may differ based on many factors.  You are urged to contact your association’s attorney regarding the specific applicability to your association.

Simplified Procedures Allowed by

Robert’s Rules for Board Meetings

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

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

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

Most board members and managers are not aware that Robert’s Rules recognizes the problem of applying formal parliamentary rules to board meetings. Robert’s Rules specifically provides that in a board meeting where there are not more than about a dozen board members present, some of the formality that is necessary in a large assembly can be relaxed.

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

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

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

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

4. No motion needs to be seconded.

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

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

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

A board always has the option to follow the regular, more cumbersome parliamentary procedures if the board works better in a more formal setting. However, most boards seem to function more efficiently with a simplified process. Of course, on important or very complex matters, a clearly stated motion can be helpful to ensure that everyone understands what is being voted upon.

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

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

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

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

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

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

 

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

Questions regarding condominium association law in Florida may write to 

Ms. Konyk c/o  The Condo News, 

131 Springdale Circle, Palm Springs, FL 33461 

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

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