ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

Last Updated 04/27/2013

***

(4-17-13)

QUESTION:

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

ANSWER:

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

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

ANSWER:

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

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

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

***

(4-3-13)

QUESTION:

Can a condominium have size or weight limits on pets?

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

***

(3-20-13)

QUESTION:

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

ANSWER:

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

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

ANSWER:

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

Your web site is awesome! Thank you so much.

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

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

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

***

(3-6-13)

QUESTION:

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

ANSWER:

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

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

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

ANSWER:

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

***

(2-20-13)

QUESTION:

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

ANSWER:

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

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

ANSWER:

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

***

(2-6-13)

QUESTION:

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

ANSWER:

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

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

ANSWER:

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

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

One more note on the authority granted the association to enter your unit. Chapter 718.111 (5) states that "The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units." Entering to do a bed check does not seem to fall under the right of access provided for under the law.

***

(1-23-13)

QUESTION:

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

ANSWER:

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

Pursuant to Chapter 718, FLA. STAT., a vote of the owners is required when making a material alteration or substantial addition to Association Property. Pursuant to Chapter 718.103 (3) FLA. STAT., "Association property" means that property, real and personal, which is owned or leased by, or is dedicated by a recorded plat to, the association for the use and benefit of its members. Additionally, 718.113:(2)(a)provides in pertinent part as follows: . . . there shall be no material alteration or substantial additions to . . . to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.

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(1-9-13)

QUESTION:

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

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

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

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

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

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

ANSWER:

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

I would appreciate a legal opinion?

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

ANSWER:

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

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

***

(12-26-12)

QUESTION:

There is a couple that own two condos in our complex. We only have 9 units and they rent out theirs. My question is, do they get two votes or does it count as one. I know my daughter and I that are both on the deed of our condo only get one vote. I don’t think if I own two condos, I get to vote twice so is it legal that are allowed to do this?

ANSWER:

If the governing documents state that every record owner gets one vote, a record owner of two units gets one vote per each unit owned. Whether the owner lives in the unit or rents it out does not disenfranchise the owner from the voting process.

We have owned our condo since 2002 and at the time we purchased, rentals were permitted. In either 2003 or 2004, a vote was taken by owners to no longer allow any rentals at all. At the current time, all residents are owners. At the time of the vote, we voted against the "no-rentals" proposal. We have been unable to sell our condo and would now like to rent it. Owners are not interested in voting to allow rentals again. We have heard that there was a ruling that would allow us to rent, so long as we owned the unit prior to the vote and voted against the proposal. Can you please advise? Thanks.

ANSWER:

You are correct. Florida Statute 718.110 (13) provides as follows: (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. Therefore, if you owned the unit when the vote to amend was passed AND you voted no to the amendment that prohibits rentals, you are grandfathered in and you can rent your unit.

We live in West Palm Beach Florida and have several board/committee members that are not homeowners of the community, although we can find nothing going through the documents. Does this mean even people outside the community can serve on our board?

ANSWER:

The governing documents include the Articles of Incorporation, the Bylaws, and the Declaration. In order to determine who is eligible for the board you should look at each of the governing documents because one or more should state who is eligible to serve on the board. Board eligibility is usually stated in the Bylaws and / or the Articles of Incorporation. A non-owner would not be eligible unless that authority is specifically granted in the governing documents. Committees are appointed by the board and committees may be made up of non-owners, as the governing documents may not limit committee members to owners. For example an account, architect or other professional or someone with expertise is often asked to assist the community as a committee member.

***

(12-12-12)

QUESTION:

I have requested that our management company provide us with an explanation of the changes to the Florida Statutes – specifically Chapter 718 which governs Condominiums. They advised they are unable to do this as it is considered the unlicensed practice of law? Really??

ANSWER:

There is always some confusion as to what services a management company can provide that may be considered the unlicensed practice of law. The Supreme Court of Florida in The Florida Bar v. Sperry, 140 So. 2d 587,591 (Fla. 1962),judg. vacated on other grounds, 373 U.S. 379 (1963), developed the following test to determine whether an activity is the practice of law:

... if the giving of [the] advice and performance of [the] services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.

When applying this test it should be kept in mind that "the single most important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation." The Florida Bar v. Moses, 380 So. 2d412,417 (Fla. 1980).

The following activities are just a few that are considered the Unlicensed Practice of Law:

• Any activity that requires statutory or case law analysis to reach a legal conclusion

• Preparation, review and drafting of contracts, not limited to construction, management cable television, etc.

• Drafting of Amendments (proposed drafts may be suggested by members or management – with the final draft reviewed by counsel)

• Determination of affirmative votes needed to pass a proposition or amendment to recorded documents

• Determination of Owners vote to establish a quorum

• Preparation of Construction Lien Documents

There are many things that a lay person may think are not complicated, but in fact can have far reaching consequences. For example - can a manager search the governing documents to determine if the association can charge interest on unpaid assessments and at what rate? While this seems quite straight forward it becomes an issue if the percentage stated in the governing documents is more than what is allowed by law. Therefore there are many matters best left to the review of the association attorney. Board members are volunteers who should rely on the advice of experts to avoid personal liability. Management companies are hired to manage the community – not to provide legal advice. The most successful associations strike a balance between the board, management and legal counsel so that each performs the duties that are most appropriate and in the best interest of the association.

***

(11-28-12)

QUESTION:

I live on the second floor of a two story twelve plex condo. I received notification that they will be painting the first floor stairwell for three days in November. The first floor residents will have to use their back patio to access their units. However, the second floor residents cannot have access to leave or enter their units for the three days between 8 a.m. and 4 p.m. Is this legal? We have TWO stairwells. Can they not paint one half leaving access to one stairwell so we can enter and leave? I am handicapped and have custody of a school aged child, along with a dog. I MUST leave and enter during those hours! Thank you for your advice.

ANSWER:

Absent an emergency – and I can’t think of one that would apply – both stairwells should not be closed at the same time if it would deny access to your unit, even for a short period of time. Absent a court order for injunctive relief, you may have a difficult time convincing the board to schedule the closure of the stairwells on different days. Perhaps you should request that the board consult with its attorney as to the legality of preventing access to both stairwells at the same time, thereby denying access to your unit.

I live in a furnished condominium in Miami Beach that I have rented since 13 months. The owner and I had signed the rental agreement, which is month to month. I gave the owner my banking account information, employment information, driver’s license information. I rented this apartment because it is uncomplicated as it is furnished and doesn’t require any application process or approval. My daughter and I want to leave the United States, and it offers the flexibility to leave without moving my furniture or living out a one year lease. Recently, when the air conditioning handlers on the roof were chocked by a large tarp that was placed on top by the roofing company, my air conditioner was broken for three days. In an attempt to get the replacement speeded up I went to the Management Office and complained that this process had left me and my daughter without air conditioning since days. The situation was remedied, however, I was told that I am an illegal tenant and that I need to fill out an application and pay the screening fee, else I will be evicted in 7 days. All of the units are owned by investors from Europe. These units are being rented out to tourists from Europe on a regular basis. We have in the past, and still are meeting these tourists, as they are rolling their suitcases through the common hallways. What is wrong with this picture? How can a tourist stay on the property and doesn’t have to abide by a condo screening process, when I have been here since 13 months and was accepted by the owner? The condominium president was renting his apartment out as well, now he sold the apartment and moved away. I believe that this was known to the association. Obviously I am not privileged to read the owner’s documents, what do I do now? I informed the owner, who lives in Italy.

ANSWER:

You should comply with the Association’s request that you follow the screening process if it is an enforceable provision of the governing documents. Although you are not an owner and do not have standing to challenge the enforcement of the governing documents, they are available to read via the Miami-Dade County Clerk of Court’s online access to recorded documents. Perhaps there is something in the governing documents that permits a short term hotel guest to bypass the screening process required of long-term renters. In any event, you could request that the Association provide you with the documentation that makes screening a prerequisite to living in the unit and if you want to continue to live in the unit you should comply with the Associations request if it does in fact have the authority to prescreen tenants. Any challenge to the requirement that a tenant must be prescreened would have to be brought by the owner of the unit.

***

(11-14-12)

QUESTION:

Our current board dissolved our Rules Committee and appointed a single board member to revise our Rules & Regulations. Yesterday we received a letter from the board advising that a meeting would be held on November 19th to adopt the Revised Rules and Regulations. Unit owners have no information as to what revisions will be adopted and the Board Secretary states she has been directed not to release any information on changes until after the board acts. Many owners are concerned over the secrecy and fear actions will be taken that will be difficult to change; particularly actions relating to use of units. Are unit owners entitled to specific wording of proposed changes prior to the meeting? Thank you for your help. Would appreciate a response ASAP.

ANSWER:

If the board has the authority to create a rule regarding the use of the units, written notice of the meeting where the rules will be considered regarding unit use must be mailed, delivered, or electronically transmitted to the unit owners 14 days in advance of the meeting. There is not any requirement that the rules be provided in advance of the meeting, although your documents may have a requirement that requires the rules also be mailed.

The authority for the Board to adopt rules and regulations must be granted in the governing document for which the Board is creating the rule. The Declaration of Covenants has the most weight followed by the Articles of Incorporation and finally the Bylaws. The Board cannot create a rule that modifies the provisions of the Bylaws or the Articles or the Declaration. The provisions of the Bylaws or the Articles or the Declaration can only be modified by an amendment which may require the vote of the unit owners as well as the Board for amendments to the Bylaws and the Articles and always requires the vote of the owners to amend the Declaration.

***

(10-31-12)

I live in an 18 story condo in Tampa. We have 119 units.

Sometime ago a resident was placing items from the trash room in the hallway in front of and around the elevators. There was no property damage but it was annoying. The thought was he was targeting one resident in particular, who is also a board member.

There are 7 board members, I am one of them. At a later closed Board Meeting I had requested (I also serve as Chairman of Personnel) to discuss matters regarding personnel. There was a discussion lead by President and v-president regarding the resident that was leaving the trash in hallway. Four of the seven board members (one was the board member they thought was being targeted, a second Board member also lives on this floor) decided to purchase and have installed a camouflaged video camera on the floor in question. Out of condo funds. (The resident was caught on camera and advised by association attorney to stop misbehaving.) Three of the other Board members were not told of this. As it was explained to me, they felt they could go ahead with this because they had a majority, the less people that knew the better. (The fact they had told their spouses was OK)

I had a problem with this. I suppose the word personnel could extend to residents, if so, we could have had a closed Board Meeting to discuss this before it happened. But to only include some Board Members in the decision I feel was wrong. Especially when 2 of them lived on the floor in question.

The camera is still there, recorder running. No further problems have appeared. 

Question: Did the four members have a right to do that?

The residents are not personnel – personnel are employees of the association. A board of directors can hold a private meeting to discuss personnel matters or with the association attorney to discuss threatened or pending litigation, but unless the board member is the subject of the litigation, every board member must be invited to the meeting. Also, every meeting must be noticed, even if the residents do not have the right to attend the meeting. Many boards attempt to reach consensus in between meetings by polling the board for a majority opinion and then acting on the consent of the majority. While Florida law does have a provision that allows boards to vote by written consent between meetings, it is required that the written consent must be unanimous. The board cannot conveniently call every issue a personnel matter or a legal matter to avoid holding a properly noticed meeting that is open to the residents. If four board members made a decision to install security cameras without the knowledge or consent of the three other board members they may have acted improperly, unless there are additional facts that have not been revealed. The acts of vandalism by a unit owner do warrant action by the board to reveal the culprit and pursue a legal remedy. In that regard it appears the cameras solved the problem. The challenge to the board is how they authorize such an expenditure without revealing to the residents that a camera is being installed. Perhaps a vote by written consent would have been an appropriate to get permission to spend money for an unexpected, unbudgeted expense.

***

(10-17-12)

My wife and I are owners of a Condo and we were screened and approved prior to closing on the unit in 1981. When my son reached 21 in 1999 he took up as the sole resident in the unit and has been living there ever since. Recently the property manager denied us a parking permit for the vehicle my son uses but is registered in our name at our permanent address. The Manager states that only resident’s vehicles can be parked in the condo parking lot regardless of the governing documents that state owners are given an appurtenance and exclusive rights to an assigned parking space. The manager classifies our son as a tenant and must now, after 13 years of continuous residency, be screened. Our son does not pay rent, does not have a lease, nor any other contractual arrangement for living in our unit other than he is our immediate family member. Let me add this is not an age restricted condo. Can an immediate family member be classified as a tenant and be denied a parking decal?

ANSWER:

There are two issues here. First, can a family member be denied a parking permit. A family member is not an owner – therefore unless they are a resident the association would not be obligated to issue a parking pass.

Second, is a resident family member subject to being approved as a tenant even if he is not paying rent? Yes, an immediate family member can be classified as a tenant and denied a parking pass if there is a specific provision in the governing documents that addresses this issue. If an association has the authority to approve or deny tenants, your son may be subject to the process even though he has lived there for many years. Many times governing documents will classify a person living in the unit absent the owner as a tenant, even if they are a family member.

I am confused between a regular board meeting and an annual members meeting. Can you please explain the difference and outline how an annual members meeting should be conducted, in a homeowners association.

Thank you.

ANSWER:

A board meeting is a meeting of the board of directors that is conducted in an open forum. It requires that the members of the association may be present while the Board tends to the business matters of the association. At a typical Board meeting, the members do not vote.

A Members meeting is a meeting of the members (owners) of the Association. Any unit owner that is a member in good standing can participate in the meeting, can make a motion, can vote etc. Many Associations conduct a members meeting only once per year (the Annual Meeting) and it is at this members meeting when they elect the board of directors. The governing documents of the association, usually the bylaws, will contain the format for conducting the annual members meeting.

***

(10-3-12)

We live in a 90-unit building. We do not have a washer and dryer room but a lot of us would like to have a washer and dryer in our condo. The board rules do not allow us. After reading the minutes, I found out that in 2010 they found out that there are 5 people that have washer and dryers in their condo. The condo association decided not to have them removed because the attorney said there was a "Statue of limitations" issue. Is there such a law for this? Is this fair?

Thank you for your service. This is great.

If an Association fails to enforce the restrictions in their governing documents there may be an issue with selective enforcement that will prevent it from enforcing a restriction. A good example is an Association that has a one pet rule yet there are owners who are keeping more than one pet. Eventually the Association may be unable to enforce this provision unless they follow a specific procedure often referred to as "Clean the Slate." If the Association has not effectively enforced a pet restriction provision in past years, some owners and residents may be confused as to the number of pets they may keep in their Unit. In order to ensure that all residents are aware of the requirement to comply with the restrictive covenants governing the Association, and to give all owners and occupants a full and fair opportunity to bring themselves into compliance with the covenants, the Association should provide a notice to all owners and occupants that states "Effective (the "Effective Date"), the Association shall enforce the above pet restrictions against all Unit Owner’s in violation of the provision in the Declaration that allows no more than one pet per Unit."

The Association needs to create a clear legal path, going forward, for enforcement of this pet prohibition. To accomplish that objective, the Association must grandfather any existing pets presently kept at the Association, provided the Owners of the Units where such pets reside specifically identify such pets for the Board. The burden is on the Unit Owners to timely come forward and identify and provide a photograph of such pets for the Board not later than a specific date. Such existing pets will be grandfathered and may remain until such pets die or are removed; however such pets may not be replaced. Further, such existing pets shall not be permitted to create a nuisance or otherwise violate our rules. Going forward, the above policy must be enforced against all Nonconforming Pets that are not registered with the Association.

In your example the Association can either amend the governing documents to permit washing machines in the units or send out a Clean the Slate letter that will permit those who already have washers and dryers to keep them, but it will prevent other residents from continuing to install washers and dryers in violation of the governing documents.

***

(9-19-12)

My companion and I jointly own a condo in Florida. I own one myself and serve on the board of directors. That would make 2 owned condos in the same complex. Can we both serve on the board? The jointly owned condo is rented.

Yes, pursuant to Florida Law you can both serve on the board since you own two units. Florida Law provides that a member is eligible to serve on the board unless a member is delinquent more than 90 days in paying assessments or is a convicted felon whose rights have not been restored within the last five years. Two members owning only one unit can also serve on the board if there are not enough eligible candidates to serve on the board.

My unit sustained damage from the unit above mine. I was told by that unit owner that he is not responsible to make repairs because a law was passed a few years ago absolving him of any responsibility. Please let me know if this is true. Thank you.

ANSWER:

Not exactly. The unit that sustained damage, as well as the condominium association, should submit a claim to their property insurance and in the event the association is responsible for the repair, the insurance proceeds can be used to repair the damages. In order to make a final determination as to who is ultimately responsible - the unit owner that caused the damage, the association or the unit owner that sustained the damage, the issue of liability needs to be decided either through arbitration or other legal means. Pursuant to 718111. A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family etc. The provision of this paragraph also applies to the costs of repair or replacement of personal property of other unit owners or the association, as well as other property whether real or personal, which the unit owners are required to insure.

***

(9-5-12)

If I send in an opinion/complaint to my condominium Board via e-mail and ask that it be kept confidential, do they have the right to share it in an open Board meeting?

ANSWER:

No they do not have to read it at an open Board meeting but all correspondence received by the Association is part of the Official records of the Association and therefore are subject to inspection by unit owners pursuant to Florida Statute 718.111 (12) . If you want to keep something confidential, don’t put it in writing.

QUESTION:

Hello, we own 2 condos in a building in Florida, is it Florida law that the manager be onsite 24 hours? She is provided a unit by the association, yet she does not stay there, and if I am not mistaken, she rents it out herself and pockets the money. Is this legal, and if not, what can we do?

ANSWER:

There is not a law requiring your manager to be onsite 24 hours a day even if the manager resides in the unit. The manager does not have the authority to rent a unit belonging to the association. If a unit owned by the association is rented, only the association is entitled to receive the revenue.

QUESTION:

My companion and I jointly own a condo in Florida. I own one myself and serve on the board of directors. That would make 2 owned condos in the same complex. Can we both serve on the board? The jointly owned condo is rented. Thank you for your time and response.

Yes. Pursuant to Florida Statute 718 every unit owner is eligible to serve on the board and the fact that you own two units would permit you each to serve on the board.

***

(8-22-12)

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?

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 and the board can act if the board approves the action. Action taken by written consent is effective when the last board members signs the consent.

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. 

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 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.

***

(8-8-12)

My boyfriend moved into my condo and the condo association said they needed to have a background check done and I need to supply them with his name, birth date, etc. His background check came back with several felony convictions and now the condo association says he cannot live with me. Can the Association tell me who can live in my condo? If I were married to this man, can the condo association tell me my husband cannot live with me?

I would prefer not to get married just so we could live together but what advice would you give? Should I ask the Board to meet with me and my boyfriend to maybe convince them that he is not a threat to the area? He is working and trying to get his life on track. Please advise. Thank you.

Convicted felons are not a protected class; therefore, the association can refuse to permit occupancy by someone convicted of a felony if it has the authority to approve or disapprove occupancy. The governing documents of an association are the first place to look when asking if the Board is acting within in its authority. If the governing documents grant the authority to either approve an individual before they can move into a unit or to enact rules regarding occupancy, then the association can develop rules or criteria that will guide the Board when making a decision. The association cannot grant an exception for your boyfriend who has been convicted of several felonies because the Board has to be able to demonstrate that it is consistent in its enforcement of the occupancy restrictions. My advice? Do not marry this man if you are doing it to get around the condominium rules – because even if you are married the association can prevent his occupancy.

***

(7-25-12)

I have a question regarding the use of a condominium in Florida. We have a condo in Hallandale Florida. The ownership is divided between my wife and her Mother, each owning 50%. We have been married about 19 years. Our part of the condominium was purchased about 5 years ago. Her mother has owned her share for 25+ years. My mother would like to use the unit in September but the association claims that the by-laws only make the unit useable by parents, children, grandchildren and siblings of the unit owners. Since my name is not on the deed, she is excluded from using the unit? This is not a rental situation, she is just borrowing the unit. Are they correct? For the record we are married and file a joint tax return, (I’m told that may be important).

The condominium restriction probably relates to a unit being used without the owner present, otherwise the owner would never be allowed to have a guest. Unless the documents state "related by blood or marriage" when it references who is considered a relative, it refers only to blood relatives. Therefore, if your parents want to stay in the unit your wife or your mother-in-law must be present. Ownership in the condominium is not evidenced by a joint tax return – it is evidenced by a recorded deed. If your wife were to quitclaim deed a portion of her share to you and if the quitclaim deed is recorded, you could present the condominium with this as evidence of ownership by you and your parents are your parents, therefore they could use the unit. Unless the by-laws are revised to permit a relative by blood or marriage that may be your only option.

***

(7-11-12)

I have a Florida condo which I purchased at 42 years of age for my second home. It is currently NOT a 55+ community. I heard talk lately that they are thinking of switching it to a 55+ community. Can this legally be done? If I ever wanted to sell this condo, this now limits my selling market and it is not how I purchased this property. Does the Association have to "buy out" my loss if this change can occur? I would not be in agreement to limiting my resale value.

The laws establishing "55 and over" communities do not address who owns property, only who resides in the community. At least one person age 55 or older must occupy at least eighty percent of the occupied units. The ages of the second or additional occupants of the unit are not a factor as long as they are at least 18 years of age. Vacant units are not counted although temporarily vacant units (typical "snowbird" homes) are counted. The law also requires the community to register with the Florida Commission on Human Relation as housing for older persons and to bi-annually confirm that the "55 and over" status is maintained.

A vote of the unit owners to amend the Declaration of Condominium would be the first step for your community to change its status to housing for older persons or an "55 and over" community. A vote merely by the board or an amendment to the bylaws or the rules would not survive a challenge by unit owners. The change would require an amendment that is passed by the unit owners with the percentage required to vote for such an amendment being the same as for any amendment of the Declaration. In the event the unit owners voted to change your condominiums status to an "55 and over" community, you as an owner under 55 would be grandfathered in, although you would be required to comply with the restriction upon the sale of your unit. The association does not have to "buy out" your loss.

Last October our board of the Condo Complex decided that all residents should buy a transponder which the new security company (voted in by the board) requested. This is a new system and everyone was notified. However there are still about 100 people that do not have them. They were given extra time to buy them but they did not and now we have a problem. I was told that because they are residents here they have a right to access the property which is ok. My standing is that they can enter the property but not necessarily their car. Is this possible and does there have to be another 30 day notice before we can start towing cars that are not in compliance?

Your note is not clear as to how the resident is gaining access if in fact you have installed a new transponder system. The residents and their cars cannot be denied access through a manned security gate or by being called in by another resident if they do not have a transponder.

The residents can be required to purchase a new transponder – BUT the association cannot tow cars because a resident does not have a transponder unless the Declaration authorizes such a remedy.

A Board member’s wife is suing our association because she fell, in our building, and is claiming damages. Would this be a conflict of interest for the Board member and should he be permitted to remain on the Board while any litigation is in process? Thank you.

It would not be a conflict of interest for the litigant’s spouse to remain on the Board but he cannot vote on this matter if it comes before the board for a vote nor should he participate in any closed meetings with legal counsel regarding this matter and / or receive any attorney / client privilege correspondence.

***

(6-27-12)

I read your column every time the paper is published. I have a question. I have a unit in a condominium that I rent. The rental laws state that we can only rent 6 months of the year. The renters also have to have a background check. I have a tenant who wants to live there yearly. The association has units for rent on a yearly basis, but we are told we can only rent for 6 months. My question is, how can I get around the 6 month rent law so my tenant can stay yearly, or as long as he wants? And can the association rent their units yearly or as long as they want? Seems unfair.

Thanks for your precious time.

Each unit owner is entitled to have the condominium covenants and restrictions uniformly applied. Unless the governing documents exclude rental restrictions on property owned by the Association, the Association is subject to the same rental restrictions as the residents. The restrictions on rentals or the authority to promulgate rules restricting rentals must be found in the governing documents in either the Declaration of Condominium, the Bylaws of the Articles of Incorporation. If the restriction regarding renting is a rule that has been enacted by the Board, perhaps you could suggest that the Board modify the rule to permit annual rentals. The board can usually modify the rules at a properly noticed Board meeting. The owners must be provided written notice of a meeting that is held to enact of modify a rule fourteen days in advance of the meeting. If the restriction regarding renting is required by the governing documents, a vote of the ownership will be required to modify the restriction.

A contract for cable TV service was entered into by the board after the condo association was formed. What are the procedures for proposing and implementing a cancellation of that contract.

The procedure for cancellation depends on when the contract was signed by the association. Check the term of the bulk agreement. If it calls for an auto-renewal provision, send the notice of non-renewal immediately by certified mail to the address provided in the contract for notices to the provider. Many associations fail to realize that they do not have to wait until the end of term approaches to send such a notice. Often bulk contracts will automatically renew because of the Associations’ failure to notify the provider in time. Often the renewal period is for a term equal to the length of the original agreement. In any event, the associations general legal counsel should review every contract before the board signs the contract. Many times cable providers take advantage of the boards’ enthusiasm to get a good deal for the residents and they provide them with contracts that contain provisions that are not in the best interest of the association. If you are unsure of the associations rights under the agreement, it would be prudent to ask your attorney for advice.

***

(6-13-12)

I am the Treasurer/President of a condo association in Florida. In March a group of individuals, lead by an ex-BOD President, implemented an illegal recall. Incredibly, the community’s bank was fooled into handing over control of the bank accounts. In the next five weeks this impostor Board ‘blew through’ about $45,000.00 of community money.

The Chief Attorney at the Arbitrators office reinstated the legitimate Board, once we got to a telephone conference with him.

We had a Board meeting last week and the owners in attendance all agreed that the ex-president, who led the group, should be banned from ever serving on the BOD again. Is there any process under FL law which would enable this community to achieve banning this individual from BOD office?

I look forward to hearing back from you, and thank you for providing such a valuable service.

There is not a process to "ban" a member from ever serving on the board, although there is a provision in the Florida Statutes, Chapter 718.112, which prevents a person convicted of a felony from service unless such felon’s rights have been restored for five years. Have you contacted your local law enforcement to request that they investigate this as a possible criminal matter? In addition, the bank may have some liability if it acted improperly by allowing funds to be accessed by these individuals.

Can the Condo Association allow an owner to lease to two unrelated adults when the condo declarations state occupants of a leased unit must be an individual lessee and members of his family and guests. Under no circumstances may more than one family occupy a unit at one time.

According to most municipal codes, the definition of a family is a variation of the following "family means one or more persons who occupy a single dwelling unit, all of whom are related by blood, marriage or adoption, or a group of persons all of whom are not so related which does not exceed two persons in number." If two unrelated adults rent the condominium and identify themselves as a "family" it is not a violation of your governing documents.

***

(5-30-12)

A husband and wife were voted onto the Board to serve as the Vice President and the Secretary. They asked if they now had two votes on all issues the Board votes on. They had checked our bylaws and said there is nothing in the bylaws about the vote. They then put this to the group in attendance, a quorum, several were against, the others said it did not matter and they now have two of the four votes. Is this legal? What do you suggest?

ANSWER:

I would suggest that if more people ran for the board, perhaps you would not have a situation where two (2) people from the same unit end up on the board. Fla. Statute 718.112 addresses this issue. In a condominium association of more than ten (10) unit’s co-owners may not serve as members of the board at the same time unless they own more than one unit or unless there are not enough eligible candidates to fill the vacancies. If there were more candidates running for the board then there were vacancies, both of the unit owners of one unit were not eligible to serve on the Board if they only own one unit. If they are serving on the board together, because they own either more than one unit or the eligible candidates were equal to the number of vacancies, then they each have one vote on the board.

QUESTION:

I purchased a condo in a 55+ gated community for my mother in ’05 in both of our names with right of survivorship. My 46 year old brother went to live with her in ’07. In October ’09 she passed away. I informed the Board to direct all correspondence to me in New York and I would pay all fees, but I was authorizing that my brother could stay on. They said he could not live there because he was underage and gave him until January to move. They said if he was listed on the deed, they could make an exception. I could not put him on the deed because he had too many debtors so, although he was in mourning and depressed, I had to make him move.

1) Was the Board within their rights?

The Bylaws state the unit can be rented but only once per calendar year and the Board has to approve the tenant. I found a tenant (a lovely 74-year-old woman) through a real estate broker. In addition to the lease she has with me, the Board has their own rental agreement, which we both had to complete, and they take 30 days (not one day less!) to approve. She was approved and moved in on 4/17/12. The Board mailed me a form they forgot to have me sign when I was down there emptying out the unit. One of the clauses states:

"Under no conditions, including breach of the Lease by the Lessee, or authorization by the Lessee, will the Unit Owner, his family, or his designees, occupy the leased premises during the stated terms of the Lease"

I am uncomfortable with this clause as it means that should the tenant die or otherwise vacate the unit during the one-year term of the lease I would not be permitted to visit or reside in my own property. This restriction is not in the condominium bylaws. When I questioned the Board representative, she said it was a mandatory part of their lease agreement and must be signed. The tenant is already in place and I did not want there to be an issue with her (or her car pass to enter the community) or have a problem when renewal time rolls around so I signed it. However, I am feeling very uneasy and resentful about it.

My question is twofold: First, is this mandatory clause legal since it isn’t in the bylaws? Second, what legal methods can they use should the worse happen and I decide to move into my own property during the terms of the lease. What recourse would I have?

ANSWER:

As a general answer, if your brother occupied the unit with your mother and if his occupancy would not have caused the community to lose its 55 and over status, perhaps an exception could have been made. Without knowing the particulars of this situation, it is difficult to answer your question. In general, community associations that are designated as 55 and over communities can discriminate against the occupancy of a unit if at least one person of those in residence is not over 55. There is an exception for up to 20% of the units to be occupied by someone under 55 if, for example, one of the occupants passes away and the other occupant is less than 55 years age.

As to the restriction forbidding you from occupying your unit if your tenant vacates before the term of her lease is over, in a community association, the Declaration has the highest authority, followed by the Articles of Incorporation and then by the By-Laws ("Governing Documents"). A lower authority, such as a rule, cannot amend the Governing Documents if it is in conflict with the provisions of the higher authority. If the authority to create rules regulating the occupancy of a unit is provided in the Governing Documents and there is nothing in the Governing Documents those conflicts with a rule regarding the occupancy of a unit, the Board may be able to institute a rule governing occupancy. If there is anything that contradicts this rule in the Governing Documents, then the Board cannot enforce such a rule. In order to enforce a rule it must be reasonable. In the event that your unit becomes unoccupied during the term of this lease and you want to occupy the unit, perhaps a certified letter to the board advising them that they cannot prevent you from occupying your unit will be enough to advise them that you intend to pursue the enforcement of the rule as unreasonable.

***

(5-16-12)

Can a person who holds a power of attorney for a member of a condominium association speak at a Board of Directors meeting, or can the Board restrict them from speaking?

If the governing documents are silent regarding the use of a power of attorney or the documents specifically allow the use of a power of attorney, the Association shall permit a person holding a power of attorney from the unit owner to speak at a board meeting. The person holding the power of attorney is subject to the same rules, if any, that govern the unit owner’s participation at a board meeting. Please note – a person holding a power of attorney may not vote in an election for the condominium board because Florida law requires a unit owner to vote his or her own ballot. If the governing documents restrict or limit the use of a power of attorney, the Association must abide by the provisions in its governing documents. Finally, a unit owned by a corporation may not be prohibited from providing its authorized representative a power of attorney to act on its behalf since a person, not an entity, must act on behalf of the corporation.

A management company has pursued our Association’s business for some time. I recently received a gift from the owner of the management company. Am I obligated to return this gift?

The Condominium act clearly prohibits a board member from receiving gifts from management companies interested in the association’s business. It would be advisable for the board member to return the gift to the management company. If the board member keeps the gift, the board member can be fined by the State. Any management company offering such a gift to a board member puts that member at serious personal risk. A complaint to Department of Business and Professional Regulation should be made by any association where one or more board members has been given such a gift. This provision of the Condominium act is so important that it is being provided, in pertinent part below:

FLORIDA CONDOMINIUM ACT

718.111 The association.—

(1) CORPORATE ENTITY.—

(a) . . . . An officer, director, or manager may not . . . accept anything or service of value for which consideration has not been provided for his or her own benefit or that of his or her immediate family, from any person providing or proposing to provide goods or services to the association. Any such officer, director, or manager who knowingly so . . . accepts anything or service of value is subject to a civil penalty pursuant to s. 718.501(1)(d). However, this paragraph does not prohibit an officer, director, or manager from accepting services or items received in connection with trade fairs or education programs.

***

(5-2-12)

I recently received a certified letter from my community association’s lawyer stating I had abused my right to email the board members and property manager. He stated the board and property manager would no longer accept my emails. The next week, I received the association letter accusing me of email abuse and demanded I only communicate with the board and property manager by regular mail to their official mailing address (They did not state the address). Also, the attorney said I had to cease all communications with association contractors and vendors. I emailed the board back and emailed their attorney demanding to be allowed to communicate with the property manager in the same ways as other owners are allowed to communicate including emails, phone, written letters, and community forms. I believe the property manager is considered a contractor. The community publishes the board member’s and property manager’s email addresses in the monthly community newsletter and the property manager sends out a weekly mass email report and which encourages members to call him by phone or email him if they need something. Their attempt to silence me seems punitive since I questioned the parking of boats at the clubhouse parking lot which I feel make the parking lot look like a storage lot. Also, I feel they need to restrict everyone from emailing not just me if receiving emails is a problem for the property manager. This seems illegal and appears to be selective punishment placed on only me. Their attorney said the vendors and contractors will be told not to talk to me. I have only talked the property manager one time in person.

Today I have confirmed they have now blocked my emails, but only mine. Is their attempt to silence me legal? Our documents and rules do not address emails or email abuse and I do not feel there was any email abuse. Wouldn’t there have to be some email quantitative limit stated on some rule or document to enforce this? Can they truly discriminate against me this way? I hope you can offer me some advice.

The property manager is the liaison between the members and the board and as such, there are times when the members must make requests directly to the manager. This communication would not include advising the manager of his or her duties and / or contractual obligations to the association. A member, by virtue of his membership in an association, is not authorized to communicate with the vendors that contract with the association regarding contractual obligations.

If you have a situation you feel requires attention by management, a certified letter is a more effective means of communication.

An association is not required to communicate via e-mail. I would not recommend publishing board members e-mail addresses because board members should not communicate directly with members independent of the entire board. All questions and concerns should be directed to the property manager and then discussed at a board meeting. Problems arise because of how one interprets an email. Many disagreements start with an email. Perhaps the person writing the e-mail does not intend to sound aggressive, but the receiver interprets the e-mail as aggressive. If a person sends repetitive emails about the same subject it is sometimes misinterpreted by the person receiving the email. Writing an e-mail in all CAPITAL LETTERS is considered SHOUTING. Very often, people say things in an email that they would never write in a letter or say to a person. Emails are often misinterpreted and we would suggest you refrain from registering complaints via email. Email can be used effectively to request a "quick" answer to a question or to request a form or advise of a situation that is not urgent.

***

(4-18-12)

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?

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.

I’m on the board at a condo and had a key to the clubhouse office. I learned that the Board’s President changed the lock because he said that previous board members have not turned in their keys. When I asked him to issue me a key, his response was that he was going to have the board vote whether all board members should have a key to the office or not. In the meantime, he told me that if I needed to use the office, to call him or the maintenance man to let me in. This has upset me because he has done things in the past without board approval and I think this is totally unacceptable.

Whether or not the Board members have keys to the office is a Board decision. This is a matter that should be decided by a vote of the Board. In fact, all matters should be decided by a vote of the Board. Some associations’ issues keys to the office to all of the board members. Others only provide keys for the management/maintenance staff and if provided to any Board members, only the president. If the office contains the owner files or any other documents, the keys should not be distributed to every Board member. Regardless, the Board should vote to regulate the distribution of association keys.

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(4-4-12)

QUESTION:

Your website is very informative. Quick question? An owner in our complex wants the board to provide him with email addresses of all owners (the board doesn’t have everyone’s e-mails, yet he feels entitled to those the board has). I say this is an infringement of my personal information. I do not want him to get this information. The board has resisted; yet, is there a law that prohibits this? I say if he wants the info, he should gather it. His comment to the board was, the office has this info, and he feels entitled as an owner to this information.

Can the board pass a bylaw saying that e-mail addresses cannot be given to owners? Or should the owner in question bring this up at the next annual general meeting?

ANSWER:

There is no need to amend your governing documents to prevent this owner from demanding owners e-mail addresses. Unless a unit owner has provided an e-mail address as the address used to fulfill notice requirements, the association is required to exclude an owner’s e-mail address from the official records that are open to inspection. If the association collects e-mail addresses from owners as a convenience and it uses a physical address to fulfill notice requirements, the association is barred from releasing the email addresses of its owners. Therefore, unless a unit owner consents in writing to an e-mail address being provided to anyone, the association would be in violation of Florida Statute 718.111 (12) (c) 5. If you do not want your email address provided as part of an official records request, do not give the association permission to fulfill notice requirements via e-mail. If the owner wants e-mail addresses of owners, he should collect them directly from the owners himself.

QUESTION:

May a Condo Board restrict owners’ usage of balconies, specifically restricting against cooking grills or fireplaces?

ANSWER:

Cooking grills or fireplaces on a balcony is a fire code violation. Please thank your Board for looking out for the best interests of the residents by protecting them from a fire or a fire code violation.

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(3-21-12)

The Board of the Condo Association has passed a directive that owners that rent for less than 6 months must provide the association with proof that they have registered with the Department of Taxation and that they have paid "use tax" as required under Florida law for those renting for a period less than 6 months. It has further stated that they would prohibit anyone from occupying a unit that has been rented unless this proof is given to the Board for its own records, when the rental period is less than 6 months and 1 day.

The current by-laws of the Association has no such restriction written.

I do not find any statutory language within the law (2011 Fla Statutes title XIV chapter 212)requiring any compliance by the Association (unless of course they act as agent for the owner in the collection of rents, in which case they are responsible for filing and paying). I understand this particular obligation to be between the owner and the State. I further believe that the current lack of language restriction in rentals of the by-laws would make this requirement unenforceable by the Board.

Can you provide some clarification as to whether or not the Board is authorized to issue such ruling (given these circumstances) and whether or not it would be enforceable in the event of a dispute, and can they deny approval of a renter based on this action.

Unless the governing documents have a provision that permits the Board to adopt rules regulating rentals without a vote of the members or a provision requiring an owner to submit proof of paying use taxes to a taxing authority, we are not aware of a requirement that the Board obtain proof that taxes have been paid. That said, it is in the owners best interest to pay all required taxes. The penalty for not paying taxes will increase the tax burden and if proof is not submitted to the Association, an inquiry might be made to the taxing authority. If the taxing authority determines a required tax was not paid it is likely there will be a penalty for non-payment of taxes. Regardless of whether or not the board can enforce the requirement directly, it can be enforced by a complaint to the taxing authority that puts it on notice that a rental requiring a use tax has occurred.

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(3-7-12)

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?

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

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

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

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

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

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

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

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

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(2-22-12)

In a Condo Association if owners do interior changes without getting the proper city or state permits is there a liability issue for the other owners ? One owner installed a washer and dryer without obtaining a building permit that according to the city was needed.

Liability is decided if there is a civil or criminal action for a remedy because of an action. Therefore, it is difficult to determine who is liable, absent a claim for damages. No one should undertake any mechanical, electrical, or plumbing improvements without obtaining the required permits and inspections. Even if there are various provisions in the code for an owner to undertake such repairs without hiring a licensed contractor, the requirement for a permit is not waived. A call to your municipality’s code enforcement division can be made by anyone that has knowledge of a project that has been undertaken without the required permits. If code enforcement determines a permit is required, it has the resources to pursue the unit owner to require that the proper permits are in place so that the project can be inspected.

First of all I think you provide a great service to the industry.

I am a board member for a 192 unit condo association here in Florida. We are curious to know if our association can foreclose on a maintenance lien without having to enforce the lien. In other words foreclose without having to first go to trial and have a judge or jury determine damages.

The debt owed to your condo association is a secured debt. It is secured by the property. Unlike an unsecured debt, such as a credit card, there are remedies within the law that do not require a court action to secure a judgment that can be collected. The Association, through its covenants, usually has the right to place a lien on the property to secure the debt so that title cannot transfer to a third party until the debt has been paid. The payment of the lien before a mortgage foreclosure, which is a transfer of title to the first mortgage holder, is subject to statutory provisions that may reduce the amount paid to the association in the event the first mortgage holder forecloses and is issued a certificate of title.

The next step for the association, after the lien is placed on the property, is to foreclose on the lien and obtain title to the property, pending the foreclosure by those with a superior interest. The process to place the lien on the property can be accomplished by paying the clerk of court for the filing fees to cause the lien to be recorded. To pursue a foreclosure, whether it is for the lien by the association or the mortgage by the bank, requires that the debtor be afforded their due process rights and it requires a court action. If the debtor contests the foreclosure the process is complicated. Many times a unit owner is willing to present the deed to the association without the need for a court action. This is called a deed in lieu of foreclosure. Before pursuing a lien foreclosure, especially if the property is mortgaged, an association needs to make an informed business decision, with the advice of counsel, to determine if obtaining title to the unit makes good business sense.

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(2-8-12)

Can a resident establish an LLC and run a business from his unit in the condo, which is against the condo declaration.

ANSWER:

Run a business from his unit and using a home address for corporate purposes are two very different things. As long as the "business" is not the primary use of the condominium and the resident is merely using the address for corporate matters, the resident is not violating the usual intent of such a provision.

The language that is usual and customary regarding such a restriction is put in place to protect the community from someone actually servicing the public from their home. If someone runs a business that requires clients to come to the residence or if there are frequent deliveries to the residence, the unit owner would be in violation of the governing documents.

Often the documents do not go into much detail regarding what is acceptable, but county ordinances are in place that will further clarify what is allowed. Language such as the following serves to clarify the intent of this restriction, "The incidental use of a home for home office purposes shall be allowed so long as such use conforms to all applicable State, County and local laws and ordinances. Moreover, this provision shall not prevent an Owner from utilizing a home office, as long as the office is not used for visits by clients or customers and providing that the office does not have an adverse effect upon neighbors or the neighborhood." Simply having a LLC with your residence listed as the mailing address is probably within the unit owners’ rights and is not a violation of the governing documents. If in doubt there are county ordinances that will also prevent the use of a residence as a business that services the public and your local code enforcement officer could be asked to verify if there is a code violation.

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(1-25-12)

It is our understanding that our Condo Association has until March, 2012 to provide a lift for our pools. We are concerned about the possibility of having this permanently installed and being such a danger to the children in the pool. As a concerned owner, I have taken the ADA questionnaire and filled it out hoping to get some answers. What I have found out is that this is very vague. We also have concerns about liability and providing someone to assist if necessary. We are individual unit owners with some owners renting their units, therefore, maybe we have requirements as a apartment building?

We will appreciate any help you can give us or direction to get answers.

Thanks for your help.

There is not a provision in the law requiring a condominium association or an apartment building to install lifts for the pools. There is a requirement, under the Fair Housing Act, that requires an Association to permit a disabled unit owner to install a lift at the unit owner’s expense with Association approval.

Florida law is clear that damage to a unit due to non negligent leaks from God or another unit is born by the unit owner. It is my understanding that the condo assoc is responsible for some repairs. In my case, my interior wall, inside the external wall, has water damage and mold on the inside surface. What is the associations’ responsibility, if any, for repairs? The Florida law is vague to the lay person so a lay response would be appreciated.

Unfortunately, I am not going to be able to answer this as it relates to your unit. The answer to your question requires that you read the governing documents for your condominium and the law. Sometimes you can get an answer if you submit the claim to your insurance provider or the insurance provider for the Association. The policy should clearly define who is responsible for repairing damage to a unit.

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(1-11-12)

What can a condo association do when a condo unit owner has not paid fees. The fees are picked up by all others in condo assoc. There is a $72,000 mortgage on the empty condo, which is worth about $18,000 now. We do have a lien on the condo, but that does not pay the bills.

If we buy it, we will be responsible for the mortgage. What can we do to get the condo, or sell it , so that fees can be paid by the next owner?

When foreclosing on a lien, how does the condo association not have to pay the existing mortgage?

We have a lien, but how do we foreclose WITHOUT assuming the mortgage?

Signed, STUCK with a dead-beat.

First things first, if you are referring to foreclosing on the lien when you say "buy" the condo, you are referring to a process which will allow the association to take possession of the unit through a lien foreclosure subject to the mortgage. You will not be responsible for paying the mortgage because you are not a party to the mortgage. When and if the bank forecloses on its mortgage, you will lose any interest in the unit that you gained from foreclosing on the lien. As a party with an inferior interest to the first mortgage holder you will lose all interest when and if the bank forecloses. That is why you must determine the risks versus the gains in foreclosing on the lien.

If you will more than likely be in possession of the unit as an interim owner and the unit can be rented (and income producing) and you can recover your loses including legal fees by collecting rent, it may make sense to foreclose on the association’s lien for unpaid assessments etc. and to gain possession of the unit. If the unit is trashed, there are restrictions preventing rental, or the bank is very close to foreclosing on the mortgage it may not make sense to foreclose on the unit. There are procedures that an attorney may be able to implement to "push" the mortgage foreclosure along. Each situation has a host of circumstances that will make it unique and the association should seek the advice of legal counsel before proceeding. Some owners are so disruptive that an association may want to proceed with the lien foreclosure to simple evict the delinquent owner from the unit.

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(12-14-11)

Our documents do not define "what is a capital improvement." We obtained more than 85% approval of our owners to convert 2 saunas to an office because it was a material alteration. Would you classify that as a ‘capital improvement? Many thanks. I just read 2 years of your opinions and find them extremely well written and informative and as accurate as I am aware of as a 17 year long serving Board Member.

A capital improvement is defined by Black’s Law Dictionary, 9th Edition as "An outlay of funds to acquire or improve a fixed asset." If you have an existing use that requires a vote of the members to convert that use to something else that would be considered a material alteration requiring the vote of the members. Whether or not an additional vote is required to expend the funds as a capital improvement to convert the sauna to an office depends on the governing documents. While the governing documents do not always define a capital improvement, the governing documents will often state an amount of money that cannot be exceeded for a capital improvement without the vote of the members. If this conversion will cost less than the threshold amount that the documents give the Board the authority to spend for the capital improvement, it will not require a vote for the expenditure of the funds. If the total amount for the project is an outlay of funds in excess of the amount the board is authorized to improve a vote of the members is required.

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(11-30-11)

I own a condo in an association that is one of four residential associations in our resort. We have a Master association that has a representative from each association sitting on its board. Our condominium has a large storage room underneath the building located directly under one of the condominiums. Our board recently gave the Master association the right to utilize our storage room for their maintenance shop. This was done without a vote or knowledge of the membership of our association. It was my understanding that this storage room was common property to our association and that each owner owned an undivided share of this storage room. No owner was presently using the storage room. Should there have been a vote and if so what percent is required to change the use of our common property?

Without having read your governing documents it is not possible to answer this question in regards to your situation. Whether a maintenance shop is a material alteration to the use of this area for storage also depends on a review of the documents. In general, any material alteration to the common elements in a condominium governed under Florida Statute 718 requires a vote of its members. If this use is in fact deemed to be a material alteration to the common elements, then the affirmative vote of the members would be required. If the declaration as originally recorded or as amended does not specify the procedure for the approval of a material alteration to the common elements, 75% of the total voting interests of the association must approve the alteration.

We are currently a smoking building, with two units that have smokers. Our Board is getting complaints from the units surrounding them that the smoke is wafting into their units. Their clothing and furnishings are starting to smell. What can we do as a board to make this a non-smoking building and do we have to grandfather the two units in? Thank you for your time

Many areas in a condominium building are non-smoking because of The Florida Clean Indoor Air Act. The areas where the ban could be enforced under Florida Statute 386.204, would be condominium common elements such as hallways and stairwells. Whether the board has the right or the authority to ban smoking inside a unit could be challenged unless there is a provision the Declaration that bans smoking within a unit. Furthermore, even if the residents passed an amendment to ban smoking within a unit, such a ban would be very difficult to enforce as it would require the board to prove that a resident is smoking within their own home. While it is no doubt a serious issue, the board may not be able to solve this issue on behalf of the residents. Perhaps the unit owners need to be advised to work this out among themselves without the board getting involved unless there is clear authority in the Declaration for the association to resolve this issue. Very often, residents expect the board to handle things that could be handled simply by letting the resident that is smoking know that their smoke is wafting into another unit. The use of filtering ashtrays or room filters by the residents may help to resolve the problem.

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(11-16-11)

Is there any legal law/rule in the State of Florida that determines of any specific place where the Ballot Box should be placed for the voters to deposit their ballots or can this box be placed at any secure area?

There is no requirement under Florida Law or Florida Administrative Code Chapter 61B, that requires the use of a locked ballot box. Very often it is apathy among the members of the community that causes a long standing board to continue to serve year after year. There may not be any candidates running for the board or perhaps there are the same number of candidates as there are open positions. In any event, the ballots can be inspected after the meeting, although the identity of the voter must not be revealed. The outer envelope must be opened at the meeting after its validity is confirmed. It is a violation of the Florida Administrative code governing condominiums if the opening of these envelopes is conducted prior to the meeting, in the event there is a need for an election to select candidates if more members are running than there are positions. At the meeting the inner envelope is separated from the outer envelope. Once all of the envelopes have been separated, the inner envelopes are opened and counted.

If the members of the Association feel that the management or the board is not being forthright, the Florida Division of Condominium, Timeshares and Mobile Homes can be petitioned by the members to monitor the election. Fifteen percent of the total voting interests entitled to vote at the annual meeting or the owners of six units entitled to vote at the annual meeting, whichever number is greater, may petition the ombudsman for the appointment of an election monitor to attend the annual meeting of the unit owners for the election of directors and conduct the election of directors. Perhaps this would alleviate the concerns of those that feel the election process is flawed, but it also requires the participation of the unit owners to actively seek enough signatures to secure the percentage required.

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(11-2-11)

My mother is an owner in the association and I live in the unit. She lives out of state. She wanted to know if there was a way for me to run for the condo board in her stead. From what I have researched I don’t think it is possible. Someone told me if she was elected to the board I may be able to sit in her place as proxy but, from what I have found the proxy has to be given to another owner.

A proxy is a method for establishing a quorum and it could also be a method for appointing someone to vote on your behalf in matters that the owners’ vote on. It is not a method for an elected board member to transfer his or her responsibilities as a board member. Some bylaws do not require that a board member be an owner, although most times ownership is a requirement for serving on the board. If the bylaws of your mother’s condominium do not permit a non-owner to serve on the board, your mother would have to put your name on the condo deed as a owner if you want to run for the board. This is not something I would recommend unless you consult a tax professional that is versed in estate planning.

I own in a condominium association in Florida. We are governed by 718. My board recently proposed a by-law amendment and voted to send it to the homeowners for their vote and approval. The amendment would change eligibility for board membership. Specifically it states that if you serve on the board of a select group of condos within our resort that you may not sit on our board. Florida State Statutes 718.112(2)a(d)1 and 718.112(3)a. states "any unit owner". Even if approved by the required percent of voting interest in the association would this be a legal amendment? Many of us own in more than one association within the resort. Can the present homeowners vote to take a right away from another homeowner that is contrary to State Statute?

ANSWER:

We would agree that the Florida Statutes would trump the proposed amendment. Every owner is eligible to serve on the board. If serving on one board creates a conflict with serving on another board, the owner with the conflict should address the conflict and recuse himself from the vote. If it becomes an issue, perhaps they should resign. But the Florida Statutes are clear in that any unit owner is eligible to serve and an amendment that attempts to circumvent the requirement of the law would be invalid.

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(10-19-11)

Our condominium Association BOD has approved construction, changing & altering common ground/land without owner approval for a bocce ball court. This is a $20,000 project, and in order to construct this bocce ball court on association common land, a significant well established planting area will have to be removed (changed or altered). This plant removal is a significant alteration and change to the over-all landscaping plan by the developer and adds significant cost to the bocce ball court. We feel this is a violation of 718.113 (2)(a). How can five Directors work their individual wish list using common land without owner approval? Do they have any limitations?

The declaration or governing documents of the condominium may grant the board the authority to proceed and together with Florida law it would define the limitations of the board. Florida Statute 718113(2)(a) provides that the board must follow the provisions in the declaration before undertaking a material alteration or substantial addition to the common elements. Pursuant to the statute, if the declaration is silent, then the board must follow the provisions of the statute to proceed. The statute would require the vote of 75% of the total voting interest of the association to approve a material alteration or substantial addition to the common elements if the declaration does not provide otherwise. If the addition of this Bocce Court is deemed to be a material alteration or substantial addition to the common elements and the declaration is silent, a vote of the members, not just the board would be required. There are several other factors that should be considered such as if this is an improvement to an already existing amenity. Finally, a review of the declaration would be required to see if this item is classified as a capital improvement or other classification that either requires the vote of the members to collect the funds required from the unit owners or is authorized by a vote of the board only.

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(10-5-11)

The developers of our condos are our Board of Directors and now want to turn the board over to the unit owners. There are several of us (myself included) that have no or little experience but are very interested and willing to do our best. We want to have a meeting open to all unit owners to share information before we actually vote on the new Board of Directors. We requested to hold this meeting in our clubhouse on the condo property which is a common area. The developer refuses to let us meet in the clubhouse or any common area stating that it is because of liability reasons. From everything I can find including 718.123 Right of owners to peaceably assemble.— the developer has no right to not allow us to meet in the clubhouse or am I misunderstanding? I also checked with our insurance provider and they said that there is no problem with liability.

I asked our manager if she could give me the name of the developer that is saying "no" but she said that she isn’t allowed to give names. Since the developers are our Board of Directors don’t we have a right to the name?

My husband and I recently purchased our unit and I have tried by contacting the condo manager to get the names of our Board and to get a copy of the minutes for the meeting that took place right after we purchased our condo. We never received a notice of the meeting and the monthly dues were raised. I was first told that I could not get a copy and when I persisted I was later told that I would have to write a letter to the board and request a copy. The management company is out of town and it is next to impossible to get any cooperation from the current board (developers). I think it is going to be extremely difficult working with these developers. What would you advise?

Here’s the good news, in fact it’s all good news. You are almost done with the developer. You should have more control after turnover of the "business" of the condominium to the unit owners. A word of caution though - the first board after turnover is the most important board the condominium will ever have and you are wise to be thinking ahead.

First, go to www.sunbiz.org. This website lists every corporation in the State of Florida and its officers. Search by the name of your condominium and you will find the names of the officers of your condominium and also the name of the registered agent for the condominium. Send all correspondence and requests to the registered agent for the corporation. .

Second, read the governing documents for your condominium. This will be your first source of information. Residents are often confused by the governing documents. The Articles of Incorporation establish the corporation. The Declaration of Condominium will contain the restrictions and covenants and it will usually be the document that addresses issues such as the use of the common elements, among other things. The clubhouse may or may not be a common element, it depends how your condominium was set up by the developer. The Bylaws are usually the document that address board matters such as how to become a director, how to call a meeting of the board and the members, how to conduct the annual meeting, how to collect assessments and things of that nature. All three of these documents and the rules and regulation together with Florida Statute 718, which governs condominiums and Florida Statute 617, which governs not for profit corporations will be valuable sources of information.

Finally, a word of caution, do not wait for the developer to assist you in establishing an ad hoc committee to move things along. This group is not elected by the members but if you can organize a small group in advance of the turnover of the association from the developer to the residents, this committee can often share their talent and experience and come up with a business plan to establish the steps required for a successful turnover and to protect the residents through turnover. Ask others that you know that live in condominiums to see if there are attorney’s in your area that specialize in condominium law. Very often one of these attorney’s will assist the ad hoc committee at no charge in establishing the first and in my opinion the most important board the condominium will ever have. After the board is establish it should hire professionals to make sure that all issues are resolved with the developer before the turnover of the condominium to the residents is completed. Usually this will include a CPA, an attorney and very often an engineer. Turnover of the condominium from the developer is a very exciting time and if handled properly you will avoid many pitfalls that those that don’t plan ahead are faced with.

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(9-21-11)

Our condo docs call for 2 unassigned parking spaces per unit in our parking garage. The Condominium Board has recently decided to sell the 4-5 closest spaces on either side of the building entrance. Can the Board arbitrarily decide to sell these common area spaces without a majority vote of owners, as our docs clearly state there is no assigned parking? A response would be greatly appreciated.

ANSWER:

Without reviewing your governing documents, it seems that a vote of the residents should be required to "sell" parking spaces. The declaration of condominium describes the condominium property and its improvements. There should be a survey and a plot plan attached that will identify the ownership of the parking spaces. The selling of parking spaces is a material modification to the common property. In some limited circumstances the board may be permitted to make a material modification to the condominium property without the vote of the residents, but if this right is not specifically included in your documents, then a vote of the residents is required. If the declaration does not permit the board to make this modification, then the law requires that 100% of the residents approve such a modification to the common property.

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(9-7-11)

Is there a Florida Condo law which states that an association or board must provide owners with some method of communication between themselves? We are not allowed to put up flyers near mailboxes or post anywhere on our property. We are not allowed to have a for sale sign on our cars. There are two enclosed and locked bulletin boards at our clubhouse but owners are prohibited from using them. We have no way to offer an item for sale or even to give it away or see if another owner might have something we are looking for. Many of us have called a charitable organization to come remove an item only to find out that another owner had been looking for just such an item. We have asked at board meetings and are repeatedly told "no". What can we do?

You should run for the board. Although you may find that the policies your board has established have merit. There is nothing in Florida law that requires a board or an association to be responsible for personal communications among the residents. If you do not want to run for the board, you can establish your own method of communication independent from the board. Perhaps a website or a newsletter could provide you with an outlet to share information with the residents? The email addresses that are on file with the association are part of the official records of the association if the resident provides the board permission to disclose his or her personal contact information. If you are creative and you have the time to put together a method for communication you will have established a neighborhood resource.

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(8-24-11)

Article 718.112, 2d of The Condominium Act states in part, "A person who has been convicted of any felony...is not eligible for board membership unless such felon’s civil rights have been restored for a period of no less than 5 years as of the date on which such person seeks election to the board."

What should be done if it becomes known that a director was convicted of racketeering and fraud in another state in the late 1990’s? How should a condominium association proceed? How can it be determined if the alleged felon’s civil rights have been restored? If not, will the state of Florida take action to force their removal or must it be accomplished politically at the next election? Are there civil or criminal penalties for serving as a director if ineligible because of a criminal background?

ANSWER:

If an owner is a convicted felon whose civil rights have not been restored for a period of no less than five (5) years, that person is not eligible for board membership in a condominium or a homeowners association in Florida. One would hope that an owner that is not eligible would resign upon being informed of such a requirement. In Florida a convicted felon is ineligible to obtain a voters registration card. One way of verifying if a person’s rights have been restored is to contact the supervisor of elections in the county where the resident is domiciled and inquire if the person has registered to vote and for how long they have been registered. Without asking each board member to verify their status by submitting to a criminal background check, we know of no other way to force a person to reveal such information. The Department of Business and Professional Regulation would have jurisdiction over this matter and it has issued a ruling that all of an individual’s civil rights must be restored in order to be eligible to serve including the right to bear arms. If you have knowledge that someone has been convicted of a crime that is considered a felony in Florida you should require that they resign from the board. If the person refuses, you should contact the Department of Business and Professional Regulation.

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(8-10-11)

How long should we expect to wait for the minutes of our Annual Meeting. It has been 8 months and we’ve only received a notice of new Board members but no minutes of the meeting itself. And how long should we have to wait for minutes of regular Board meetings? We don’t get them sometimes for months due to the fact that the Board negotiates among its members and changes the minutes regularly (the President makes a recording and so do I.) The members of the community are months behind in knowing about any business conducted and the rumor mill is unreliable at best and shouldn’t be the way we are getting our info. Thanks for any information you can give me as our Documents are silent on this issue.

ANSWER:

The minutes of the meeting should include a description of all pertinent items and should restate all motions and the results of any votes. The minutes should not be a word by word transcript. The minutes should be available for inspection after that have been prepared and approved by the secretary. This is usually done when the Board approves eh minutes at the next meeting of the board. You mention you attend and tape record the meetings, therefore you do have a record of what took place and you will be able to verify the minutes are an accurate reflection. The association is not required to provide the members with copies of the meeting minutes although it is required to make them available upon request.

The minutes of an Annual meeting are approved at the next Annual meeting of the members. It is customary for the board to notify the community as to the results of an election if it is held at the annual meeting. Often the only business that takes place at the member’s annual meeting is the election of the Board.

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(7-27-11)

The original By-Laws of our not-for-profit Homeowner Association, duly filed in the County provides the fol-lowing language regarding the filing of future By-Laws:

Any instrument amending, modifying, repealing or adding By-Laws shall identify the particular Section or Sections affected and give the exact language of such modification, amendment, or addition or the provisions repealed. A copy of each such amendment, modification, repeal or addition certified to by the Secretary or Assistant Secretary of the Corporation shall be recorded amongst the Public Records of the County. (* this section has never been amended)

Over the years some not so diligent Boards of Governors would neglect to record newly adopted Resolutions and By-Laws, and amendments, modifications, additions, and redefinitions thereto. Then, sometime later, (even years later) a new Board might wake up and revisit and file some of the earlier overlooked filings, and untimely file those By-Laws, and include Resolutions, Rules & Regulations, Policy, etc. Never has it been practice to follow the requirement that the exact language and particular Section be identified.

My questions, please:

1. Is any enactment as a By-Law, Resolution, Rule & Regulation, Policy, etc., valid and enforceable if it had not been filed among the Public Records of the County?

2. When does any such enactment or amendment thereto, become effective…the date it is adopted by the Board, or the date it is filed?

3. Is it fatal that identifying the exact language and Section is omitted?

Thank you for your reply

If the document being amended is required to be re-corded in the Public Record to be effective, then it is not effective until it is recorded. The language in your documents does not state that the amendment is not effective until it is recorded, just that is shall be recorded. This could be interpreted as a requirement to record the amendment before it is effective since the use of the word shall means recording is required and not optional.

All amendments should contain the original language with a strikethrough of any language that is being removed and an underline on any language that is being added. If a previous board neglected to file the documents correctly, this is a flaw that can be corrected by filing an amended and restated document. It would take an effort on the part of the board or someone designated by the board to correct the errors. If the records kept by previous boards are not complete, with a certificate of amendment stating how the amendment was ratified, it may even require a new vote pursuant to the requirements of the document being amended.

The governing documents may permit the board to enact rules and regulations through the authority of the board. Most boards do not record rules and regulations unless the governing document authorizing the enactment of rules and regulations by the board require recording. In your example the bylaws are specific in that it says they shall be recorded in the public record. The requirement to record the bylaws does not extend to rules and regulations unless the recording of the rules and regulations is specifically mentioned.

***

(7-13-11)

Does a condo board in the state of Florida have to respond to resident’s emails? Or must they be submitted as certified letters? Our Miami condo board has been informed by many concerned residents in regards to a distressing situation by email of our concerns. We asked questions with the expectation of being informed in a timely manner. I don’t feel they are bad people though this is an issue they’d like to quietly go away. However it is far too serious a matter to dismiss and if not dealt with compromises our building. How do we rightfully get responded to as residents that voted them into office with the expectation of being responsive to our concerns?

Email is not a reliable method of communication. Often emails never get delivered to the intended recipient because of an error on the senders part or because there may be filters to block receipt of emails on the recipients server. Under Florida law, there is not a requirement that board members have an email address available to the residents or that board members accept emails. There is not a requirement that an association accept emails.

SEND A CERTIFIED LETTER, if there is something that requires action by the Association or the Board. This guarantees that you have documented proof of your concern. Additionally, if a response is required within a specific time frame, it is proof positive of when the request was made and when it was received. Do not rely on a casual method of communication, such as email, for a matter that is "far too serious a matter to dismiss." If it is in fact that serous – send a certified letter, which is the only reliable method of communicating a serious concern.

***

(6-29-11)

My husband and I own a townhouse in a 4 unit townhouse community. We rent ours out to a young couple with two children. Recently, the president of our homeowners’ association stated that this couple had some friends visiting and were using the common area pool. The president specified that the renters were in violation of rules which she claimed state that our two bedroom unit can only allow 2 people per bedroom to use the pool. This seems very arbitrary and suggests discrimination. Can this be true?

ANSWER:

Without a review of your governing documents, it is not possible to give a specific answer. Your governing documents may in fact limit the number of guests allowed at the pool at one time - but I would doubt that such a rule limiting guests is based on the the number of bedrooms. Perhaps your rules state that no more than two (2) persons per bedroom can occupy a unit and the president may have this confused with the guest privilege provision.

While on the subject of association rules, it is important to note the hierarchy of governing authority for community associations. They are, in order of greatest to least authority, 1) Federal Law, 2) State Law, 3) Local Ordinances, 4) Declaration of Condominium (or Covenants for a homeowners association), 5) Articles of Incorporation, 6) Bylaws, 7) Rules and Regulations and 8) Robert’s Rules of Order. An association cannot amend its governing documents if the amendment will conflict with a provision or a law that has a higher power. For example, a rule or regulation enacted by the Board cannot attempt to modify a provision in the Declaration, unless the Declaration has a provision permitting such a modification by a rule. A good example would be the ability to approve the sale or lease of a unit. Unless the Declaration provides that the Association has the right to approve the sale or lease of a unit, the board cannot institute such an approval process through a rule. However, if the Declaration authorizes the board to approve the sale or lease of a unit, the board may be within its rights to promulgate rules regarding the sale or lease of a unit.

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(6-15-11)

I live in a 90 unit condominium in Florida. Our Board of Directors are continuously holding meetings that are not posted. Our Community Association Managers are also present. Can they do this?

No. the board cannot have a meeting unless it is noticed. It is a requirement of Florida condominium law that all meetings be posted, regardless of whether or not they are open to the membership. Unless the governing documents provide otherwise, the following notice is required for meetings: Board Meeting – 48 hours posted with agenda. Budget Meeting- 14 days mailed (with a copy of the proposed budget) and posted. Annual Meeting - 60 days for first notice, 14 days for second notice, mailed, delivered, or electronically transmitted. Board meeting to levy special assessment- 14 days mailed and posted – must include the purpose and estimated amount of special assessment in the meeting notice. Board meetings to adopt rules regarding parcel or unit use – 14 days mailed (along with a copy of the proposed rule) and posted. Members Meeting – Pursuant to Bylaws, usually at least 14 days mailed or delivered. Committee Meeting – Committee that takes final action on behalf of the board or makes recommendations to the board regarding the association budget must notice meetings 48 hours in advance, and the meetings must be open to unit owners. Meeting with Association Attorney – Must be noticed 48 hours in advance, but are not open to unit owners when the meeting is held for the purpose of seeking or rendering legal advice.

***

(6-1-11)

I am hoping you can answer the following as I am having a difficult time obtaining an answer. Can a condo association require its owners who rent out their units, sign an addendum to lease, pertaining to collecting rents, without it being part of the bylaws or governing documents? I ask because my association will not process my lease renewal until I sign this and cannot provide a date as to when this was made a requirement to rent out our unit nor how the unit owners were made aware of this requirement. Any help you can offer will be highly appreciated.

The governing documents of an Association may or may not grant the right to approve leases. In the event your association is granted this right, it may be able to require the completion of an addendum to the lease. If the documents permit the association to approve the lease, it is more than likely permitted to require a lease addendum that would permit an association to collect the rent from the tenant if the owner is delinquent in paying assessments. If you are current in your obligations to the association this right of the association to collect the rent would not apply to your situation, even if you sign the addendum. Regardless of whether or not you sign the addendum, the association has the right, pursuant to Florida Statute 718, to collect the rent from tenants if the owner of the unit is delinquent. In fact, House Bill 1195, which is awaiting the signature of the Governor, addresses this very issue, making it clear that the intent of the provision in the law is to collect all monies owed, including past assessments. It sounds like your association is being proactive in that they are not standing by while a unit owner fails to pay the assessments when due, while profiting from the rental income.

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(5-18-11)

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.

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 the right is granted in the Declaration, a community claiming senior/adult status is required to register with the Florida Commission of Human Relations and state that the community is compliant with the requirements in order to qualify for this status. This requirement must be submitted in writing, on association letterhead and signed by the president. If your condominium has registered as 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 rules restricting this further by requiring 100% of the units to have at least one occupant that is 55 years of age or older.

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. Furthermore, if the association is not registered as a 55 and older community with the Florida Commission on Human Relations it cannot operate as an adult/senior community.

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 regards 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.

***

(5-4-11)

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.

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(4-20-11)

The residents of our condominium are contacting the board to tell us we cannot enforce our documents or Florida law. This is a result of an article in the newspaper that said we our governing documents must contain language "Subject to Florida Law, as amended from time to time" or similar language. Is this true?

The commentator was referring to the inclusion of language in the Declaration saying that future amendments to Florida Statutes Chapter 718 are automatically applicable to the governing documents. This language is referred to as "Kaufman" language. The article implies that any changes in the statutes are not applicable to your community unless the "Kaufman" language exists in the Declaration. Most statutory changes will apply to your community regardless of whether the Kaufman language exists in the Declaration. This is particularly true of changes regarding procedural operation of the Association. While it is helpful to have that Kaufman language in the Declaration, it is not essential. In the event the Association is considering revising its Documents, we would recommend including the Kaufman language, but not having the language, in most instances, will not prevent the Association from complying with Florida laws as they are amended from time to time.

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(4-6-11)

Apparently, squatters have taken up residence at one of the homes in our sub-division and the owners of the home do not want to spend the money on the court costs to have them evicted. Back in December, several vehicles showed up and proceeded to move into an unoccupied dwelling that was being foreclosed.. What we think happened was that the individuals cleaning the inside and outside of the residence let on to friends or acquaintances that the home was vacant and probably would not be able to be sold due to the condition (roof and interior damage). The real estate agent was advised that this was happening and they advised the owners, the sheriff was called and they decided not to evict them since the illegal tenants gave a good story to them that went like this, "We answered an ad to rent the dwelling and signed a lease to move in".. We don’t think this was the case, we believe that the story is false. Now the owners refuse to evict the tenants since the home is going into foreclosure. There is a revolving door of cars going in and out of the neighborhood. How can they be evicted, more than likely not paying taxes, and just using the area and school system without proper paperwork. Any advice?

Here is the good news – the Association, pursuant to Florida law can evict the "squatters" if the owners are also delinquent in the payment of any monetary obligation due the association. The Florida legislature has included a very important provision in both Chapter 718, governing condominium associations and Chapter 720 governing homeowners associations, regarding collection of assessments, which may be applied to your particular situation. If a unit is occupied by a tenant, and the unit owner is delinquent in paying any monetary obligation due the association, the association can demand and require that the tenant pay the rent to the association to satisfy the monetary obligations owed to the association. The association must make a written demand to the tenant. The demand is continuing in nature. Upon demand, the tenant must pay the monetary obligation owed the association until the association releases the tenant or the tenant discontinues the tenancy. The association must mail written notice to the unit owner. The association must provide receipts to the tenant for any payments received. A tenant who acts in good faith in response to the association’s written demand is immune from any claim by the unit owner. If a tenant prepaid rent, and the tenant provides written evidence to the association of same, the tenant shall receive a credit for the prepaid rent and must make subsequent rental payments to the association. The landlord/unit owner is required to provide the tenant with a credit against rents due for the amount of money the tenant pays to the association. Moreover, most important to the association it can evict a tenant if the tenant fails to pay the required payment to the association. Contact your association attorney to see if this provision can be applied to accomplish your goal – the eviction of the tenant.

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(3-9-11)

Are there any legal or other means of substantiating that the owner of a condo unit does not occupy the unit? The reason for the question is that her daughter, who is only 51 years of age, is living in the unit alone without approval by the Board of Directors to be an occupant. The regulations require that a person under 55 years of age can only be an occupant if a person over 55 years of age is also occupying the unit. We are a senior condominium association.

Both the owner of the unit and her daughter contend that the older person, the owner, occupies the unit. However, the owner also owns a condominium in a different community, where we believe she resides. As far as we can discern, the owner has not occupied the unit from the time she closed on it last year. Her car is occasionally seen on our premises for one or two hours but never overnight. Her application for purchase of the condominium stated that she alone would be living in it for 6 months during the year.

You should first require the unit owner to provide an application for the approval of the occupant in the unit that is not an owner. If the association requires that the owner be in residence for an occupant less than 55 years old to be a permanent resident, you might request the owner to provide you with a copy of a driver’s license verifying that they are using the residence as their permanent residence or require that they provide a verified affidavit that the owner is using the unit in your association as her permanent residence.

Another idea is to check the property appraiser’s website to see if the owner has filed a homestead exemption for either property. If it is filed for the unit in your association and you suspect that the owner is living elsewhere, the property appraiser may be able to look into this further as an owner must live in the residence where they have filed for the exemption. If they have filed for the homestead exemption at the other property, the owner has established that they are not living in the unit and is therefore in violation of your governing documents.

If the occupant/daughter is classified as a guest, because the owner is not present, the association should review its policy regarding guests in a unit. Many associations require an owner’s presence for a guest to be in residence and others have a time limit that a guest can occupy a unit. The association has a duty to pursue this matter because not pursuing it could have serious consequences in that the community could lose its status as a 55 and older community if more than 20% of the units are occupied by someone under 55 without a person 55 or older also in residence and/or the association could be prevented from enforcing a rule that it is found to have ignored.

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(2-23-11)

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.

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.

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(2-9-11)

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

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

The bylaws for most condominiums permit absent owners to participate and vote in membership meetings by proxy, except that a proxy shall not be used in the election of the board. All condominium board elections must be by ballot completed by the member entitled to cast the vote.

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

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.

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(1-26-11)

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

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.

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

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.

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(1-12-11)

We have a board member that pays his condominium dues late. Can he run for the board if he is not up to date on his assessments?

When a director is more than ninety (90) days delinquent in the payment of any monetary obligation due the association, he or she is deemed to have abandoned the office and removal is automatic. This same board member can run for a position on the board in an upcoming election, but at the time he takes office he must be current in all obligations to the association.

We are a small HOA community with two units having liens on the unit for back monthly maintenance charges. One unit has been empty for over three years. Taxes are being paid. The unit is not up for sale, but it is tied up in the families of the deceased owner. There are two banks also involved. Our question is if the unit is sold how far back does the law state we can collect the back fees?

If the unit is sold to an independent third party, the association can collect all of the fees that it is owed. If a unit is also in mortgage foreclosure and the lender forecloses the on the property the statute provides that the association can collect 12 months of the past due assessments or an amount equal to 1% of the mortgage, whichever is less. Without having the specific details of this situation there appears to be additional options. The association can foreclose its lien subject to the mortgage – and it could rent the unit to offset the monies owed until the bank forecloses. If the units are being rented the association can step in the shoes of the landlord and collect the rent.

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(12-29-10)

QUESTION:

The condominium association board has imposed a fee of $1000 per year upon any owner who wants to rent his unit for any amount of time during the calendar year. The Board did this without a vote going to the membership.

The collection of a fee for simply having the privilege to rent a unit is not allowed under Florida law, even with a vote of the membership. If the governing documents permit the approval of a tenant, a fee not to exceed $100 may be charged in conjunction with the lease approval application. Some governing documents permit the collection of a refundable deposit to ensure that the tenant does not damage the common areas or association property. Rental restrictions are enforceable as long as they are authorized by the governing documents and provided there has been uniform enforcement by the association of the restrictions. If the governing documents do not authorize the payment of an application fee or the collection of a deposit to cover damages by the tenant to the common area the Board may not collect either fee.

Our Board president recently entered into a contract with Comcast for a new term without the vote of the owners. Do the unit owners have any say in the matter if we are signing a $500,000 contract for a seven-year period?

If the condominium documents so provide, the cost for communication services such as Internet or cable TV may be considered a common expense. If the documents do not make such a provision, the board of directors has the authority to enter into a bulk contract for these services as long as the contract is for a minimum term of two (2) years. The charges must be allocated equally per unit even if the unit owners do not share the other expenses in the condominium equally. The unit owners do have an opportunity to vote to cancel a bulk contract that the board entered into if it follows the procedure outlined in Chapter 718.115 (1) (d) 1 of the Florida Statutes. The motion by an association member to cancel a bulk communication services contract must occur at the next regular or special meeting of the members (not a board meeting) following the contract’s approval by the board. The annual meeting would be an example of a members meeting where any association member may make a motion to cancel the contract. If the motion is not made at the first members meeting following the ratification of the contract by the board, if the motion fails to get a second, or if it fails to pass by a majority of those in attendance at the meeting, the contract is ratified for the balance of its term.

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(12-15-10)

Our condominium documents have a term limit provision for directors, which is a maximum of three (3) consecutive terms of two (2) years each. The Association got an opinion in 2009 that term limits were not allowed under Florida law and then got an opinion from a new lawyer in 2010 stating that term limits are allowed. Which one is correct and if the board will not allow someone to run based on term limits, what is the remedy?

The governing documents will prevail because the law does not have a provision that voids term limits if they are required by the governing documents. Since this dispute involves the enforcement of the governing documents and the dispute is not in regards to a perceived violation of Chapter 718, the Division of Florida Condominiums, Timeshares, and Mobile Homes will not intervene. If the governing documents have a provision that permits a maximum of three terms, then the board is required to abide by that provision.

My question is regarding pets. Our governing documents clearly state that owners can have pets. It further states that no guest, lessee or invitee shall bring any animal whatsoever onto the Condominium Property. The question arises regarding long-term tenants that desire to bring a pet onto the property. If the owner doesn’t care if the guest has a pet, and since when your unit is rented out the owners rights transfer to the renter can this argument be used for an owner allowing a long term tenant to have a pet when our docs state differently. Thank you for any light that you can shed on this question.

If the governing documents state that only owners may have pets and that no guest, lessee, or invitee shall bring any animal on the Property – then only owners may have pets. The confusion here is because the law says a tenant receives all of the use rights in the association property and common elements. The law does not say the tenant gets all of the rights of the owner. The provision is in place so that an owner does not attempt to retain the use rights of the common area amenities such as the pool and fitness center. The owner of the unit retains access rights as a landlord but that does not include access to the pool or the fitness center.

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(12-1-10)

Several of the owners have stopped paying their dues (assessments) for a variety of reasons. What action does the association have available to collect the owed amounts? The other owners are having their dues increased to cover the unpaid amounts.

It is frustrating when a unit owner does not pay their assessment, yet continues to enjoy the benefits that are provided to the members by the association. Although an association should file a lien to protect its interest, it is not always practical to foreclose on the lien and take possession of the property. Several factors must be considered before the association considers taking title to the delinquent property. Whether the association is able to rent the unit and have it become income producing is one of the first things that should be considered. Many units are in such disrepair that the association would have to make a sizeable investment prior to offering the unit for rent. Even though the association takes possession of the property subject to the mortgage and it is not obligated to make any mortgage payments, there are other costs that the association will be responsible to pay. Most water utilities charge a fee even if the water is turned off. It may be advisable to keep the electricity on in the unit, especially in a condominium that shares interior walls with another unit. Some associations will take on these responsibilities to force the "eviction" of a unit owner that is troublesome to the the association.

In addition to filing and foreclosing on a lien, Florida Statute, Chapter 718 permits an association to suspend a unit owner’s right to the use of the common areas and to step in and collect the rent if the unit is rented.

***

(11-17-10)

QUESTION: Why can we not get all of the channels we used to receive from our Cable TV Provider, Comcast? We have been told there is a switch to Digital programming – but we are not sure what that means?

ANSWER: Comcast is in the process of "migrating" channels from analog to digital, which means that cable customers will soon have to have a "box" on every TV to view all of the cable tv programming that may be included with your homeowner association dues. The reason Comcast is migrating the channels is to be able to offer more High Definition channels.

Many Associations are in the process of renegotiating its existing bulk Comcast contract to provide each resident a solution. If your Association has not renegotiated, the equipment is available on a retail basis.

To understand what you will need when the Analog to Digital migration is completed, you first need to understand the equipment Comcast offers and its retail pricing. While the retail pricing may be different in the market where you live, this will still provide an explanation of the equipment. Comcast charges a fee for each receiver and an additional fee for High Definition service (HD) and Digital Video Recording service (DVR). Comcast offers four types of equipment with different pricing:

• Digital Transport Adapter (DTA) at a retail cost of $1.99 per month

o The DTA will provide access to Limited Basic, Expanded Basic, and Digital Starter Service. You will not have access to Music channels, Video on Demand, the interactive program guide, or premium channels that you may subscribe to on a retail basis on a TV that has only a DTA.

• Digital Standard Receiver at a retail cost of $6.95 per month

o The Digital Standard Receiver will provide access to all channels in addition to access to Music channels, Video on Demand, the interactive program guide, and all premium channels for which you subscribe.

• HD Digital Receiver with HD Service at a retail cost of:

o $6.95 for the receiver and $7.95 for HD Service.

o This will provide access to everything a Digital Standard Receiver provides in addition to the ability to view programs in High Definition, a better quality picture available if you also own a High Definition TV.

• HD-DVR Digital Receiver at a retail cost of:

o $6.95 for the receiver and $15.95 for the High Definition Recorder Service

This will provide access to everything the HD Digital Receiver provides, with the ability to record programs.

Each subscriber will receive a letter from Comcast advising when the Analog to Digital conversion will be completed. Until then you can continue to enjoy the programming you presently receive without the need for additional equipment.

***

(11-3-10)

QUESTION: I just received a notice from our property manager that all the directors of our condominium association must resign, because under the changes to 718 that took place, a board member may not serve for more than 2 years. She also said that there is no defined time you must be off the board. Is she correct?

ANSWER: No. The statute says that staggered terms for board members cannot be longer than two years. A board member may be elected to subsequent terms of office as long as each term is no more than two years. Check your governing documents and if they do not address term limits, there are none because Florida Law does not impose term limits for directors.

STAGGERED TERMS FOR CONDOMINIUM DIRECTORS: The legislature amended Florida Statute 718.112(2) (d), effective October 1, 2008, regarding staggered terms for condominium directors. The statute was amended to permit staggered terms for directors for no more than 2-years upon approval of a majority of the total voting interests. Staggered terms of three or more years are no longer allowed. If a condominium association has staggered 3-year terms for directors, the association must definitely take a new vote to amend for a staggered 2-year term structure.

The question arises whether a condominium association with an existing staggered 2- year term structure in its documents must take a new vote to approve the staggered 2-year term structure. The Division of Florida Condominiums, Timeshares and Mobile Homes ("Division") has taken the following position on this issue. If the condominium association documents already provide for 2-year staggered terms, the Division recommends that the association reaffirm this by a new vote with approval from a majority of the voting interests in order to continue using 2-year staggered terms. This is the case even if you can prove that your 2-year staggered term provision was previously adopted by a majority of the total voting interests of your association.

We recommend that this approval vote should be taken before the association mails out the first notice of annual meeting and election.

Staggered terms of three or more years are no longer allowed. If your association wants to adopt 2-year staggered terms as a new provision or your current association documents provide for staggered terms of 3 years or more, you must amend your documents accordingly. If you currently have staggered terms of three or more years, board members who are not up for election because they are in mid-term of a 3-year term may serve out the remainder of their term. If a board member’s 3-year term expires at the next (upcoming) election, either the newly elected member is limited to a 1-year term or 2-year staggered term depending on how your documents are amended and approved by a majority of the voting interests. This process will repeat itself in subsequent annual elections until all board members are serving either 1-year term or 2-year staggered terms.

***

(10-20-10)

QUESTION: We have an owner who has taken steps to sell his parking space apart from the unit. Our documents state: "Once the parking space has been originally assigned by the Developer, a conveyance of the condominium parcel without reference to the appurtenant parking space shall, nevertheless, also convey the parking space." We have not had any amendments to our documents in this regard.

Reference to 718.106, 718.107, and 718.110 seem to support that the parking space cannot be sold separate from the unit.

Is this correct?

ANSWER: Yes, you are correct in that a parking space that is appurtenant to a unit cannot be separated from that unit and sold. It may be permissible under the governing documents for a unit owner to permit another unit owner the "use" of the space that is appurtenant to his unit for a fee, without the actual transfer of ownership of that parking space.

Pursuant to Florida Statute 718.107 (2), the condominium parcel must be transferred as a whole. Therefore, the common elements and other appurtenances cannot be separated from the condominium parcel. A parking space is an appurtenance to the parcel. Since the the parking space was not "deeded" separately from the unit, a unit owner cannot sell or transfer their parking space.

There may be an instance where a developer has additional spaces available after each unit has been assigned its share and they may offer the additional parking spaces to unit owners for purchase. The additional parking spaces may or may not be deeded independent of the the condominium parcel. Pursuant to to requirements in the governing documents, a unit owner may have the ability to transfer a parking space that is not an appurtenance to the unit to another unit owner. If the unit owner you refer to does not have a separate deed to the parking space they are attempting to convey, then it cannot be separated from the condominium parcel and any such attempt to transfer the ownership of the parking space would not be possible.

***

(10-6-10)

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

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

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

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

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

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

***

(9-22-10)

QUESTION: Five unit owners installed a lift that is attached to our condominium. It was installed with the permission of the board. We are wondering if this lift is now a common element and do all of the unit owners have to reimburse the five unit owners that paid for it and had it installed? Who is responsible for maintenance of the lift?

ANSWER: The lift is not a common element. While the board allowed the unit owners to install the lift, it is still the property of the five unit owners that contracted for it and paid to have it installed. Anyone that wants to use the lift would have to get permission from the unit owners that installed the lift. The maintenance of the lift is the responsibility of the five unit owners that own the lift. A recent arbitration decision determined that the association could not require the unit owners that own and installed the lift to provide the association with evidence of general liability insurance in case someone makes a claim for damages. For that reason, it would be advisable for the association to make an inquiry of its insurance provider as to their liability coverage in the event someone made a claim against the association because of something related to the lift.

***

(9-8-10)

QUESTION: Recently, after attending an Insurance seminar, our Secretary returned to tell us that according to one speaker, Florida has issued new regulations that restricted information about condo owners that could be distributed to all other owners. We have traditionally published a directory which included names, summer addresses, phone numbers, and Email addresses, as well as local information. This Directory is extremely popular! Is there any truth to this story? We have not had any complaints and omit information if the owner makes such a request.

ANSWER: Your Secretary is correct. The Statute previously stated that information obtained in connection with approval of a sale, lease or transfer of a unit is not accessible by owners. The Statute also stated that medical records of owners are not accessible.

Personnel records of association employees, including, but not limited to, disciplinary, payroll, health, and insurance records; E-mail addresses, telephone numbers, emergency contact information, any addresses of a unit owner other than as provided to fulfill the association’s notice requirements; personal identifying information of any person, excluding the person’s name, unit designation, mailing address and property address; Any electronic security measures that are used by the association to safeguard data, including passwords; the software and operating system used by the association regarding data. The statute now also states that the association is not liable for an association member’s misuse of information obtained from the official records.

[Effective July 1, 2010; Applicable Statute FS 718.111(12); Bill reference SB 1196].

The statute was revised this year to limit the information that is accessible to owners under a records request. As such, we would not recommend publishing the restricted information without the express written permission of each owner. We would suggest that you provide the owners with a form to fill out with the information that they would want published in the directory. Have the owners sign them and provide them with a new form every time your directory is published. Keep the most recent form on file, but do not provide access to the forms in the event a request for records is made by a unit owner. Since each situation is different, we would suggest that before publishing such a directory, you consult with your association attorney.

***

(8-25-10)

QUESTION: Can my condominium 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. 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.

***

(8-11-10)

QUESTION: Why does it seem that the President is making so many decisions without having a board meeting first?

ANSWER: Once elected by the membership, the board of directors is charged with carrying out the duties and responsibilities of the association. The authority of the board is comprehensive and, in addition to Chapter 718 (which governs condominium associations), it includes all of the powers and duties enumerated in Chapter 617 (Florida Not For Profit Corporation Act), as long as the powers are consistent with the provisions of the governing documents of the association.

This question often comes up, especially in the summer months, because there may not be enough board members in residence for a quorum of the board. Because there are not any meetings, members of the association may think the President is violating the law or the governing documents. That is not correct because the President is the chief executive officer of the Association with general powers and duties of supervision and management of the Association, which usually pertain to this office. Additionally the President must perform all such duties as are properly required of him by the Board of Directors. It is typical in almost every association for the President to act in his best judgment. This is called "managing by exception" in that a President has the flexibility to manage and if he undertakes more authority than the board deems prudent or appropriate, the board clearly instructs the President as to what powers the President has. If the Board of Directors ever decide the the President has exceeded his authority in any area of the management of the association, the board of directors always has the authority to establish a clear policy as to what the President can and cannot do. This rarely happens in association management situations.

If it seems that the President is exceeding his or her authority, it is up to the board, not the members of the association, to limit his or her authority.

***

(7-28-10)

QUESTION: Can the Association prevent a person from parking in guest parking spots if they live in the Association and owe money to the Association?

ANSWER: Florida Law recently changed to provide for the suspension of the right to use common elements, common facilities, or other Association property. The answer to this is, unless the governing documents provide otherwise, an Association may not suspend parking rights that are deeded to the unit that is delinquent or that are deemed limited common elements. In regards to suspending or monitoring owners parking in guest parking, unless the Association has security that monitors the guest parking spots, and / or it has towing privileges granted to it in its governing documents, there is not an effective way of enforcing such a suspension.

If the Association has towing privileges it is IMPERATIVE that it follow the letter of the law when authorizing the towing of a vehicle. The Association must provide a signed "tow slip" authorizing the towing of a specific vehicle that has been prepared at the time in which the vehicle is cited for the parking violation. Towing companies are in violation of the law if they are found to be in the possession of signed tow slips authorizing towing that are filled in by the tow company with the information identifying a specific vehicle after the Association requests the tow.

State law holds a property manager financially responsible for any illegal tow so that car owners are protected from what is referred to as "predatory" towing. Predatory towing is the term given to the removal of cars from parking lots by tow companies that carry with them blank pre-signed tow slips as they search for "illegally" parked cars by tow truck drivers that are paid a commission. The Palm Beach County towing regulations are specific in that a vehicle may not be removed from private property without "the prior express instructions of the property owner or manager." The owner or manager is required to sign the tow slip in the tow truck drivers presence or fax the driver a signed form with an electronic time stamp. State law says illegal towing can constitute a first-degree misdemeanor or third-degree felony.

QUESTION: Our board recently voted to non-renew our bulk cable contract and selected a new company to provide this service. We have been told we will no longer be served by the original provider. Many of us want to continue with our present retail services. Also, we have requested that the board have the new contract reviewed by our attorney – yet they refuse. What can we do?

ANSWER: The board does have the authority to select a bulk cable provider pursuant to Florida law, although a contact to provide a bulk service for the residents is not something the board should sign without having it reviewed by the association attorney. Often there are provisions in these contracts that are onerous and / or in violation of Florida law or F.C.C. regulations or the agreement is not in the best interest of the members. Since these agreements are for several years, the damage that may be done to the association is not confined to a short period of time.

Some of the basic questions that need to be addressed are; 1) whether the provider is a franchised cable provider; 2) do they have the proper insurance in limits that are sufficient to protect the association; 3) what is considered an outage and how long does the provider have to respond; 4) can either party assign the contract?

Furthermore, although the law clearly states that a condominium cannot prevent a provider from offering services to the building, the incumbent bulk provider may choose not to continue offering services at all, even on a retail basis, as the wiring within the building may only support one provider, regardless of the service being retail or bulk. There are additional requirements as to the law concerning material alterations to the common areas that may be triggered by the placement of equipment on the roof or in the building. Finally, there is a provision within Chapter 718 of the Florida Statutes that provides that any contract for a community antenna system or duly franchised cable television service may be canceled by a majority of the voting interests present at the next regular or special meeting of the members of the association. This is not to be confused with a board of directors meeting, as members do not vote a board meetings. Members only vote at members meetings such as the annual meeting. By avoiding having the contract reviewed by the association attorney prior to signing, the board may not be acting in the best interest of the association. It is very costly and often impossible to undo the damage if it is discovered after the agreement has been signed that the contract is not in the best interest of the association.

QUESTION: Our condo building is a non-rental. One of our units is for sale after the death of the owner. The son who does not live here inherited it and put it up for sale. It has been for sale for 6 months with no buyers. He is asking the association for a change in our rental policy because of a "little financial difficulty" with paying the mortgage and maintenance fees. What is the criterion for financial hardship and does he have to prove his financial hardship?

Does the board have the ultimate authority to refuse his request based on our no-rental policy without proof of financial hardship?

ANSWER: Restrictions on the sale or rental of condominium units are valid if such restrictions are provided for in the governing documents. If the governing documents prohibit rentals under any circumstances, an amendment of the governing documents would be required to permit the rental of a unit under any circumstance, including financial hardship.

If your condominium governing documents permit units to be rented only in the case of financial hardship, the Board must establish a policy that defines what constitutes a financial hardship that will allow the rental of a unit. In your example, a family member that inherits a condominium that is subject to a mortgage may be enough to qualify for the financial hardship deemed necessary to rent the unit.

If your governing documents permit rentals in the case of financial hardships, it is important that the covenants restricting rentals or in your case, allowing rentals, are equally applied to all owners. The best way to assure that this is done is to establish criteria that define financial hardship that will permit a unit to be rented. If the governing documents do not define what constitutes a financial hardship, the board could consider things such as the sudden loss of income through death, disability, or the loss of employment that has continued for more than six months, as criteria that would permit the rental of a unit. It is important to remember that a rental can only occur if such rental is provided for by the documents.

QUESTION: If a president of a board resigns before the annual election and no one on the board wants to hold that office, can the board of a condo elect some other unit owner?

ANSWER: The board members are elected by the community. Unless the Bylaws provide otherwise, the officers (president, vice president, secretary, treasurer) serve at the pleasure of the Board. In the event that a board member resigns before the end of the term, most documents permit the remaining members to appoint someone to fill the vacancy on the board. The first step, if none of the board members wants to step in as president, is to appoint a member to fill the vacancy on the board. After the vacancy has been filled, the "new" board should elect a president. In the event that no one will assume the role of president, then the vice president of the association acts as president, with all of the powers of that office, until a replacement is found.

QUESTION: We are an upscale condominium association with one very delinquent unit owner that is really taking advantage of the amenities. In spite of his non-payment of assessments to the association, he has been allowing friends and family access to the pool, the gym and the club room. He has also put a strain on the concierge due to his multiple family members and friends arriving at all hours of the day and night. Now that the law has changed what can we do to prevent this unit that is paying 0% of the fees from taking further advantage of us by using the amenities to the exclusion of unit owners that are paying?

ANSWER: Florida Statute 718.303 has been substantially amended to permit the association to suspend the right of a unit owner, or an occupant or invitee to use the common elements, common facilities or other association property. The Statute provides that an association may also suspend the voting rights of a member due to non-payment of any monetary obligations more than 90 days delinquent. The association cannot suspend rights to use limited common elements, common elements used to access the unit, utility services provided to the unit; parking spaces or elevators.

Let’s start with what you cannot do first. You cannot call the police to enforce the violation of association rules because this is a civil matter. You cannot prevent access to the unit, or to limited common elements or the assigned parking, nor can you shut off utilities, such as water.

The association, at a meeting that is properly noticed, must vote on the suspension of the right to use the common elements and the suspension of the right to vote on association matters for any unit owner that is delinquent for more than 90 days in paying a monetary obligation to the association. If the board votes to suspend the rights, the association must notify the unit owner with 14 days written notice advising that the rights to use the the identified common elements, common facilities or other association property is suspended, either as the unit owner or as a guest of another unit owner. For instance, if a unit owner can either valet or self-park, you can restrict access to the valet as long as the unit owner can self-park. All key fobs can be reprogrammed to deny access to the pool, gym, and club room. You cannot deny access to or reprogram fobs to deny access to elevators or to parking spaces. If guests arrive, the concierge can either allow access to the elevator without announcing the arrival or advise the guest that the guest must contact the unit owner so that the unit owner can arrange for access by meeting the guest in the lobby.

There are unit owners that stop paying the association because they overpaid for a unit and they feel the only out is mortgage foreclosure. These restrictions on the use of the common elements may give unit owners who have the money to pay the assessments the incentive to pay the association, even if the unit is in mortgage foreclosure. One word of caution no one, including managers, board members or unit owners, should get into any face-to-face confrontations with unit owners that ignore a suspension. Please consult your association attorney in regards to your association’s implementation of the changes to Florida law.

[Effective July 1, 2010; Applicable Statute FS 718.303(3),(4) and (5); Bill reference SB 1196].

QUESTION: We signed a 1 year lease with a private owner which expires July 15, 2010. The owner of the condo is willing to renew the lease without an increase, however he stated that the condo association will not approve the renewal based on the following:

• I stand outside of the building on the side walk and wait for my wife to pick me up on a daily basis for five to ten minutes, sometimes longer depending on the traffic. The reason I wait outside my wife is afraid of using the elevator on her own, so I usually ride the elevator with her in the morning and evening when she gets back from work. Sometimes the schedule varies different times during the day.

• As per my conversation with the owner, the association stated that they will not renew the lease based on the above mentioned activity.

• The owner is willing to renew the lease, but is fearful that it will not be approved by the association.

• The Rules & Regulations of the Condo documents has nothing in reference to me not being able to wait outside for my wife.

ANSWER: Rental restrictions are enforceable provided the board of directors correctly implements all restrictions. The restrictions must be uniform and fair. When a rule or restriction is improperly applied the association may be liable for damages resulting from improper interference with the unit owner and its tenants. Perhaps the unit owner should submit your application for renewal of your lease and see if in fact the association rejects you as a renewal tenant. It may be possible that the unit owner prefers not to rent to you and if that is the case, it is the unit owners right to deny you a lease, unless it is for reasons protected under federal and state law.

QUESTION: We have an owner claiming to be an emotional person. She claims that she is depressed since her husband passed away. Her chiropractor suggested a dog might help her feel better, but the Association does not allow pets. Are we required to grant her an exception to allow a pet even though the governing documents forbid pets?

ANSWER: Sometimes a resident will present a doctor’s note stating in general terms that it is medically advisable that the resident be permitted to have the pet or that the resident is being treated for a chronic condition and would greatly benefit from the pet. Such a letter is insufficient to warrant an exception to the governing documents.

The rule of law here is that in order to justify an exception to the document provision against a pet, the resident must establish that she suffers from a handicap within the meaning of the Fair Housing Act. In general, this means that the person has a physical or a mental impairment that substantially limits a major life activity.

The next step is to determine whether it is necessary for the Association to make an accommodation in its covenants so that the resident has an opportunity equal to that of other residents to use and enjoy the condominium. Proof that is more specific is needed of the resident’s condition and of the role that having the pet would play in changing the resident’s situation so that the waiver of the provision against pets would be warranted. To provide such proof, a doctor’s sworn certification should be required from the resident. The Association should advise the resident that it will keep any medical information confidential.

The Association should fill in the name and address of the Association and the provision in the documents where an exception is required to allow the owner to have a pet. The above steps are necessary because if the resident is truly handicapped and the pet is truly a necessity, then the Association would be subject to a Fair Housing complaint for failure to accommodate the disability if it did not allow the pet. On the other hand, if the Association allows the pet without proof of the disability and necessity for the pet, then it would set a bad precedent for the other owners and allowing the pet could be successfully challenged by those residents that may object.

QUESTION: The board president was recalled 7 months ago. Now he wants to be a board member again. The condominium does not want him as board member, please advise.

ANSWER: There is nothing to prevent a recalled board member from serving on the board because of his previously recalled term unless the member is convicted of a felony. In the event there is a lack of interest in running for the board, this person may be elected by default.

Pursuant to Florida Law:

Unless the bylaws provide otherwise, a vacancy on the board caused by the expiration of a director’s term shall be filled by electing a new board member, and the election shall be by secret ballot; however, if the number of vacancies equals or exceeds the number of candidates, no election is required.

Make sure that there are more people running than there are open positions on the board so that the member is not elected by default. If the members have a concern about the previous dealings of this board member then they should not vote for this person. In the event this person is reelected, you have the right to inspect the Association records. You should exercise that right at reasonable intervals and you should attend all board meetings.

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: I would value your opinion regarding the following situation.

Our association has one assigned numbered parking space for each unit. There is an auxiliary lot for parking a second vehicle if needed. Our rules state that the second vehicle may be parked in another unit owners numbered space if that unit owner grants permission to do so.

Our condominium association board has just ruled that our vehicle must now display a decal that will identify that it is indeed a vehicle owned by a unit owner or resident. However, the second vehicle must pay a fee for a permit to park in the auxiliary lot or in the numbered space that permission was granted by that unit owner.

I am aware of Florida statute 718-111 (4) which states that the association may not charge a fee for use of common elements or common association property. I believe that charging a fee for the second vehicle is in violation of Florida statute 718-111-(4). I am not sure that the board can charge a use fee for a unit owner’s assigned numbered space. The board claims that they can charge a fee. We are a condominium association of 140 units and I am not alone in having a second vehicle. Our condominium was formed in 1972 and we never had to pay a fee until now. There is no mention of any fee in our documents or in any of the new rules that the new board revised in March of this year.

Could you please offer your opinion with regard to this matter?

ANSWER: When assigning or enforcing the assignment of individual parking spaces, procedures must be fair and uniform. You have quoted FL § 718.111-(4) in part. While the association may not charge a use fee against a unit owner for the use of common elements or association property –it goes on to say - unless the right is granted in the declaration or by a vote of the majority of the members of the association, or unless the charge relates to expenses incurred by an owner having exclusive use of the common elements or association property. (emphasis added)

The identification of an owners car in his or her assigned parking space is beneficial, especially if there have been issues with others using owner’s spots without permission. In order to determine if the fee is justified depends on how much the fee is and for what purpose it is collected and if it is allowed by the declaration or by the law. Generally speaking, the assigned parking spaces are either unit owner’s deeded property, a limited common element, a common element, or association property depending on how the parking scheme was first developed. Although the care of limited common elements may be part of the association’s responsibility, the declaration may provide that the cost for maintenance may be a cost shared only by those entitled to use the limited common element. If the association is entitled to pass these costs on to the the unit owner who is entitled to use the parking spot either by assignment by the association or by agreement with another unit owner, it may be passing the cost for each space to the unit owner that is actually using the spot. The second lot / visitor parking area is usually a common element or association property. Whether the fee for the second car is allowed would depend on how much the fee is, for what purpose it is used, and if the collection of the fee required a change in the declaration and/or a vote of the membership. To charge a fee for an owner to park in an assigned spot or in a second lot would have to be justified by the declaration or by Florida law if the charge relates to expenses incurred by an owner having exclusive use of the common elements or association property.

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

ANSWER: Any committee which acts on behalf of the association must act reasonably. Therefore, depending on the action which the owner is required to take, the time allowed must be sufficient to allow the act to be performed. If the Compliance Committee acts unreasonably, their action would not be upheld by a court. Two weeks to paint a house probably is not reasonable. The Board of Directors of your association has the option of overriding the Committee by adopting rules that set time limits within which members are required to comply with the rulings of the Compliance Committee.

QUESTION: Our documents say that we should have the Annual Members meeting in November but every year they have the meeting in February. The Board says that they do this in order to get more participation. Is this legal? Shouldn’t we change the documents to allow this?

ANSWER: Whether this is illegal depends on whether it is a homeowners’ association or a condominium association. A homeowners’ association is required, by statute, to conduct its annual meeting on the date fixed in the bylaws. There is no such corresponding requirement in the Florida Condominium Act. Nearly all condominiums are administered by an association which is incorporated under Chapter 617, which governs corporations not-for-profit. That Chapter states that the place and time of all meetings may be determined by the Board of Directors. However, confusion may result because your documents state that the meeting is to be held in November but it is instead held in February. Therefore, the association should change its documents to provide for the meeting to be held in February.

QUESTION: Is a Condo Association responsible for payment of the monthly maintenance fees when it has obtained ownership of a delinquent owners unit? The association obtained ownership via a foreclosure due to the delinquency.

ANSWER: Yes, the Association would be responsible for payment of the monthly maintenance fee because it is now the owner of the unit. If the unit owner is delinquent and the Association places a lien on the property, it would have the option of pursuing a lien foreclosure and thereby obtaining title to the unit. If the unit has a mortgage, the Association will take title of the unit subject to the mortgage, but it would not be obligated to pay the mortgage.

Some Associations will go forward with the lien foreclosure when a unit owner is behind on the assessments and rent the unit so that it will become income producing. This income can be used to offset delinquent assessments and the monthly maintenance fees. If the unit has a mortgage foreclosure that is pending and/or it is not going to become income producing, there may not be any advantage to the Association proceeding with the lien foreclosure, although each situation would have to be decided based on all of the facts.

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 suggested that Chapter 718.112 (2)(d)(1) applies. This section states:

"If 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. This is an election, although it was not necessary for the members to vote, since there were less people running for the board than available positions. Since there was an election, the existing 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.

QUESTION: I asked the Board for a copy of the opinion provided by the Association attorney. The Board responded that the Association attorney’s opinion was confidential information that could be shared only with Board of Directors and that this information was not available to the Association members. There is no dispute that the Association is the "client" and that the attorney’s bills are paid for by the Association.

I believe that my request for this information is supported by rights to access to records under Section 718.111 (12)(a)(15). I am well aware that an exception exists regarding disclosure of an attorney’s opinion, mental impressions, etc. under 718.111 (12)(c) (1) where there is actual or threatened litigation or administrative proceedings. (That portion of the statute goes on to specify that the exception only applies so long as the litigation or administrative procedure is pending.) That is not the case here. There is no pending or threatened litigation. The Board asserts that all advice received on interpretations and other condo issues, outside of litigation, are only within the Board’s purview and that Association members have to take their word for it.

The Association acts through its Board and the attorney-client relationship exists between the Association and the attorney. If the advice is in furtherance of the rendition of legal services to the client (Chapter 90.502(10(c)(1), then what basis does a Board have to assert a separate privilege to opinions of the Association attorney where no litigation or administrative procedure, pending or threatened exists?

ANSWER: If there is not any pending or threatened litigation or administrative proceedings, the unit owners are entitled to request a copy of such an opinion. An owner has every right to inspect the records under Florida Law and this is clearly part of the records that should be made available. We often encounter boards that do not realize there is a fine line between their obligations as board members and the rights of an owner. It may just be a misunderstanding on the part of the board and I would suggest you make your request to view the legal opinion in writing. If you are denied after making this request in writing, you may want to pursue this further, although you may have a better understanding of the issue now that you have seen this opinion.

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 for seven years. Their content should include any motions made, the result, and other pertinent items of business.

QUESTION: We have a president who runs our community without holding meetings. She makes decisions, hires and fires contractors without the other Board Members knowledge. Is this legal? What can the owners do about this?

ANSWER: No, it is not legal. An association acts through its Board and it is the Board which makes decisions on behalf of the association. The President’s powers are limited to those set forth in the governing documents of the association and those powers which are delegated to her by the Board. In the case of contracts, the association is additionally required (with some exceptions) to solicit bids before awarding contracts where the materials, equipment or services being contracted for exceed 5% of the total annual budget (in the case of a condominium) or 10% of the total annual budget (in the case of a homeowners’ association) with some specific services being exempt from this requirement. In most circumstances, the association will be bound by the President’s actions and contracts if the other Board members are aware that she is holding herself out as acting on behalf of the association and the Board takes no action to limit her authority. In most cases, the Board has the authority to remove any officer at any time by a majority vote of the Board if any officer, including the President, fails to follow the direction of the Board.

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

ANSWER: No, it is not right. Committees are not allowed to act in secret. Under Florida law, any committee which acts in place of the Board is required to keep a record of all its actions. Those records form part of the official records of the association and are available for inspection by all members of the association. In addition, in many instances, committee meetings are open to all members of the association and the members are entitled to be notified of the meetings in the same manner that they are notified of Board meetings.

In the case of a homeowners’ association, this notice requirement applies to any committee which makes a final decision regarding the expenditure of association funds or any committee vested with the power to approve or disapprove architectural decisions regarding individual lots.

In the case of a condominium association, this notice requirement applies to all committees. The meetings of a committee which does not take final action on behalf of the Board or make recommendations regarding the association are not open to all members, except if the association bylaws so state.

QUESTION: We have a bulk cable contract and our board decided to get a different cable provider. We are being told the previous provider either will not or cannot provide service to our building anymore for cable and Internet. As such, we are about to lose our email addresses that were offered for free by that provider. Is this legal?

ANSWER This is extremely frustrating. Unfortunately, the previous provider may not have enough customers on an individual basis to continue to provide service to the building in the event that it is no longer the bulk cable provider. If that is the case, then you would no longer have access to your email address that was given to you by that provider.

We recommend that everyone set up a free email account, rather than rely on one that is offered through your Internet provider, especially if you use your email to run a business. It can be a major disruption to be forced to give up an email address and add to that the expense of reprinting business cards, stationary, and advertising. Some of the more popular free email address can be obtained from AOL located at www.aol.com, gmail, located at www.google.com, and yahoo, located at www.yahoo.com. Once you set up an email on this type of a free account, notify all of your contacts that you will no longer be using your previous address. This will safeguard your ability to continue with the same email address, regardless of who your purchase Internet access from.

QUESTION: Our condo association by-laws state "No dogs or pets are allowed..."

However, a new owner moved in and has a barking dog (which he is not curbing). The noise disturbs neighbors. Our President said there is nothing he can do to get rid of this owner. Do we have any recourse?

Thank you for your help

ANSWER: Covenants that restrict or prevent pets are enforceable. This restriction cannot be selectively enforced and the board should proceed with the remedies that are granted under the governing documents and Florida law to cause the owner to remove the pet (although you may be tempted to "get rid of the owner" you will have better luck removing the pet).

Although No Dogs means no dogs . . . the Unit owner may qualify or attempt to qualify a pet by having it classified as needed as a handicap accommodation by asking a doctor to write a letter.

Recent federal court decisions have held that an Association has the right to inquire of a doctor who states that a pet is needed as an handicap accommodation and to ask the doctor to explain the specific nature of the alleged handicap and why the handicap requires the prospective resident to have the animal. In this regard, the patient must establish through the doctor’s statement that the patient is handicapped within the meaning of the law in sufficient detail so that the Association is on notice of the handicap. It should also explain why an accommodation may be necessary to afford the handicapped person equal opportunity to use and enjoy the dwelling and also that such an accommodation is necessary.

The doctor’s conclusions regarding the need for the animal must be included and there must be specific facts regarding the activities of daily life which may be limited, as defined under the Florida and Federal Fair Housing Acts, and specific facts indicating how the animal enables the resident to use and enjoy the home or the common facilities of the Association; how the animal alleviates or mitigates the handicap; or that the animal in question has skills as a service animal which would require an accommodation.

When an accommodation of this type is requested, it is appropriate for the Association to require a doctor’s sworn certification that will furnish the necessary facts.

QUESTION: I am the president of a condominium with an enormous amount of units that are delinquent. We have sent these people to the attorney who has filed liens on the unit. The law firm has advanced all of the costs associated with filing, until these matters are resolved. In the event we are unable to collect from the unit owners, who is ultimately responsible for the things like court costs that have been advanced?

ANSWER: The association will be responsible for paying any costs that have been advanced by the law firm in the event they are not collected from the unit owner. Several years ago, before the foreclosure debacle that is facing our entire country, lawyers often advanced the costs and collected them when the matter was resolved. This was never an issue in the past, as the associations had few liens filed and had sufficient funds in operating accounts to pay such fees in the event the costs were not recovered from the unit owners.

In today’s environment, many associations have large percentages of their unit owners in various stages of collection and they have a significant amount of money that has been paid on their behalf by their attorney to advance the costs associated with filing the lien with the Court. The costs involved in filing a lien exceed $400 per unit and multiplied by the number of units the association has been forced to file a lien on – this could be a significant debt to the association. Since this situation is not getting any better, every association should take a look at the dollar value of all fees that have been advanced on its behalf and consider adding a line item to their budget to cover a percentage of these fees in the event that they are not recovered from the unit owner.

One last note on this subject. If a unit owner is living in a unit and is reaping the benefits of the things that are being provided by the association, you would think he would do the right thing and pay the association. Unfortunately – many people assume that if they are not paying the mortgage, they should also stop paying the association. This can complicate things for many reasons. For example, if the unit owner is able to successfully seek a loan modification from his bank and reduce his mortgage payment, he will still owe the association. Many association documents provide for penalties, late fees, as well as attorney’s fees that are associated with the collection of delinquent assessments. These costs can often spiral out of control until the unit owner finds himself in a hole so deep he may not be able to retain ownership of his unit – even with a loan modification.

QUESTION: I am on the Board at my Association and we have quite a few unit owners who are delinquent in the payment of assessments and I have recommended to the Board that we post the list of delinquent owners on the community bulletin board. Is this legal?

ANSWER: Even though your question does not indicate whether you are on the Board of a homeowners association or a condominium association, the answer is the same for both types of associations. Both Chapter 718, which governs condominium associations, and Chapter 720, which governs homeowners associations, specifically state that the official records of the association include a periodic statement of account for each member designating their name, the due date and amount of assessments owing, the payments to the account and the balance due. As you may know, the official records of the Association are available for inspection and copying by any member of the Association. In lieu of posting the list of delinquent unit owners on a community bulletin board where it could be viewed by non-members (tenants, guest of residents, vendors, etc.), we recommend that the Association post notice that the list is available for inspection and copying at the owners request or that the Board bring extra copies to board meetings or membership meetings to provide to the members who would like a copy. In this way, if there is an error in the information, you have not published the information or made it available to the public for viewing which could give rise to a defamation claim.

QUESTION:  We had a roofing company provide our association with a new roof and now we come to find out that the roofer did not pay one of his subcontractors, as we now find out that he has placed a lien on the association property. We executed a Notice of Commencement and were provided with a Release of Lien with each payment. What should we do, as no one can sell his or her units now with this lien on the property?

ANSWER: Under the Florida Condominium Act, labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but may be the basis for the filing of a lien against all condominium parcels in the proportions for which the individual owners are liable for common expenses of the condominium. However, a lien can be filed against association-owned property (not common elements) for work done on that property.

In addition to filing a notice of commencement in the county clerk’s office, the association must post a certified copy of the notice in front of the building where the work will be done. The association must also file a copy of the notice of commencement with the local authority issuing the building permit. All of this puts any subcontractor on notice of the identity of the association and the direct contractor. Any subcontractor wishing to pursue his lien rights to secure payment must then make himself known to the association. The subcontractor has to serve a "notice to owner" form on the association before the final payment has been made to the direct contractor. This notifies the association that the subcontractor can file a lien if he has not been paid, even if the association has paid the contractor in full. If the association has done everything it is supposed to with regard to filing and posting the notice of commencement, the subcontractor cannot record his claim of lien until after serving the notice to owner. Once the association has received the notice to owner, it must not pay the contractor any partial or final payment without first getting a partial or final release of lien from the subcontractor that gave the association a notice to owner. Another option is to pay the subcontractor and deduct the amount paid from what would otherwise be due to the contractor. It is preferable, however, to have the contractor first pay its subcontractors so that there is no question about the amounts charged by the subcontractor. The association should also request an affidavit from the contractor listing all unpaid subcontractors and the amount that each is owed.

In your case, if you filed and posted a notice of commencement and did not receive any notice from the subcontractor, the non-receipt would be a complete defense to an attempted enforcement of a lien by the subcontractor. If there is no available defense to the lien, an individual owner may relieve his condominium parcel of the lien by payment of the proportionate amount attributable to his condominium parcel. Upon payment, the lienor must release the lien of record for that unit. All of this is a brief overview of a very complex area of the law. An association should seek legal counsel experienced in this area before beginning any construction or maintenance project.

QUESTIONS: Can our Association reject a potential tenant that I have for a unit I own in a condominium?

ANSWER: If the provision for screening is included in the Governing Documents of the Association, the Association may "reject" a potential tenant. The provisions of your Association’s Declaration, Bylaws and Articles of Incorporation provide important guidelines for the screening process.

If the Association’s Documents so provide, a unit owner’s failure to be current on his assessment payments can give the Association the authority to disapprove a potential lease.

A prospective tenant’s criminal background is not reason for a denial of an applicant unless his criminal record relates to the types of conduct that will adversely affect other residents in the community, or if, for example, the Documents specify that the occupants must be of good character.

The Association’s documents may provide that the potential lessee’s financial situation is a factor to be considered, and this would justify considering such information. In other cases, unless the tenant’s financial situation poses a risk to the Association, the person’s credit history is not usually a criterion to reject a prospective tenant. This is because of the credit history’s failure to have a direct impact on the Association. A renter is not in a debtor / creditor relationship with the Association. The tenant is in such a relationship with the owner of the unit. It is the owner and not the tenant who is liable to pay maintenance assessments. In most situations, an Association is not in the position to obtain a credit report on a prospective tenant unless that tenant has consented, in writing, to such an investigation. If a credit report is required, the consent should be made part of the application process and the application should provide for the consent by the applicant.

Where potential tenants will be in clear violation of the Association’s Documents, the Association has the authority to reject the lease. For example, if trucks are prohibited and a potential tenant states on the application form that the tenant intends to park a truck in the community. This is considered a "threshold" condition that allows the Association to withhold approval of the lease.

If it becomes clear to the Association in a personal interview that the applicant is unwilling to respect the Association’s rules and regulations, or if an applicant refuses to sign an acknowledgment that the tenant will follow the rules, the Association can disqualify the applicant.

Additionally, the Association can reject an applicant under the "threshold" requirements of the Documents for occupancy including, for example:

1. No pets where pets are prohibited;

2. No commercial or other prohibited vehicles where such vehicles are not allowed; and

3. Too many persons will occupy the unit for the number of bedrooms, in violation of local ordinance or the Documents.

The Documents of some association provide for a Right of First Refusal, which often requires the Association to provide an alternate renter if the candidate presented is disallowed. According to Florida case law, in some instances, where the candidate does not qualify under the Documents, the "threshold" condition, the Association can disallow the proposed candidate without being required to provide an alternate renter.

QUESTION: We are a 55+ condo association. One of the units owned by parents, is occupied solely by a 25ish son and his girlfriend. Under the 80/20 formula, we are still considered 55+. The couple have been residents for 4 years, without any problems. By visual observation, it appears the young lady is pregnant.

Our Condo documents do not allow children under 18 to reside for more than 14 days at one time, with a total of 30 days annually. Does FL condo law consider a pregnant woman to be a violation, also?

ANSWER: Many condo’s have age restrictions so that the senior citizens can live in peace and harmony.

A community claiming senior-adult status is required to register with the Florida Commission of Human Relations stating that the community is compliant with the with the requirements in order to qualify for the status. This must be submitted in writing, on association letterhead, signed by the president. Anyone who knowingly submits fraudulent information can be fined.

In order to preserve a common scheme there are rules that a condominium must follow. The 80 percent / 20 percent rule is often misinterpreted. First, 80 percent of the units must have one occupant that is over 55 years of age in order to allow an occupant less than 55 to live in a unit. The only exception would be a spouse who is less than 55 that continues to live in a unit after the death of the spouse that qualified by being over 55 and/or someone that inherits a unit.

In the case of the owner’s son and the pregnant girlfriend, neither can occupy the unit as their residence unless the parent who is over 55 also resides there or they inherited the unit. The pregnancy in and of itself would not prevent them living there.

So – even though the law is clear in that the baby can never occupy the unit – the son and the girlfriend are also in violation. The Association should inform this couple that they need to relocate because they are in violation of the requirements for maintaining a community that is age restricted since they do not qualify under any of the the exceptions.

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.