ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

Last Updated 04/12/2014

***

(March 19, 2014)

QUESTION:

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

ANSWER:

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

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

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

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(March 5, 2014)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

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

 

***

(February 19, 2014)

QUESTION:

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

ANSWER:

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

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

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

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

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

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

 

***

(February 5, 2014)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(January 22, 2014)

QUESTION:

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

Thank you!!

ANSWER:

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

QUESTION:

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

ANSWER:

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

Section 718.113(2)(a), Florida Statues provides that "there shall be no material alteration or substantial additions to the common elements or to the real property which is association property, except in the manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions."

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

 

***

(January 8, 2014)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

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

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

Thank you for your help.

ANSWER:

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

 

***

(December 25, 2013)

QUESTION:

Good afternoon!

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

 

ANSWER:

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

QUESTION:

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

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

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

Thank you for your time and assistance in this matter.

ANSWER:

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

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

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

QUESTION:

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

ANSWER:

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

 

***

(December 11, 2013)

QUESTION:

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

 

ANSWER:

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

QUESTION:

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

ANSWER:

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

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

 

***

(November 27, 2013)

QUESTION:

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

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

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(November 13, 2013)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

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

ANSWER:

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

***

(October 30, 2013)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(October 16, 2013)

QUESTION:

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

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

Appreciate your time to answer these questions.

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(October 2, 2013)

QUESTION:

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

Please comment.

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(9-18-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

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

 

***

(9-4-13)

QUESTION:

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

Regarding reserves:

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

Thanks for your help.

ANSWER:

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

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

 

QUESTION:

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

ANSWER:

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

 

***

(8-21-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

Thank you

ANSWER:

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

 

***

(8-7-13)

QUESTION:

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

Thank you,

Susan

ANSWER:

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

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

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

 

***

(7-24-13)

QUESTION:

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

ANSWER:

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

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

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

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

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

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

 

***

(7-10-13)

QUESTION:

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

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

ANSWER:

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

QUESTION:

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

Thank you.

ANSWER:

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

***

(6-26-13)

QUESTION:

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

 

ANSWER:

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

The Condominium Act expressly permits a declaration of condominium to "include covenants and restrictions concerning . . . transfer of the units." Thus, an association may restrict the sale or rental of a condo unit. Issues arise when the association makes amendments to the declaration of condominium concerning such restrictions. An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment. Fla. Stat. § 718.104(5) (2012); Fla. Stat. § 718.110(13) (2012).

 

QUESTION:

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

 

ANSWER:

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

 

QUESTION:

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

 

ANSWER:

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

 

***

(6-12-13)

QUESTION:

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

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

ANSWER:

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

 

***

(5-29-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

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

• The person has an open and obvious disability.

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

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

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

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

***

(5-15-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

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

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

If you have any suggestions I would appreciate your response.

ANSWER:

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

 

***

(5-1-13)

QUESTION:

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

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

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

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

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

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

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

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

ANSWER:

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

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

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

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

 

***

(4-17-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(4-3-13)

QUESTION:

Can a condominium have size or weight limits on pets?

 

ANSWER:

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

 

QUESTION:

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

 

ANSWER:

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

 

QUESTION:

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

 

ANSWER:

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

 

***

(3-20-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

QUESTION:

Your web site is awesome! Thank you so much.

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

ANSWER:

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

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

 

***

(3-6-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

ANSWER:

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

 

***

(2-20-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(2-6-13)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

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

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

 

***

(1-23-13)

QUESTION:

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

ANSWER:

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

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

 

***

(1-9-13)

QUESTION:

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

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

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

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

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

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

ANSWER:

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

QUESTION:

I would appreciate a legal opinion?

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

ANSWER:

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

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

***

(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.

QUESTION:

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.

QUESTION:

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.

QUESTION:

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)

QUESTION:

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?

 

ANSWER:

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)

QUESTION:

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.

QUESTION:

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)

QUESTION:

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.

ANSWER:

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)

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.

ANSWER:

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.

 

QUESTION:

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)

QUESTION:

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.

ANSWER:

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)

QUESTION:

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

ANSWER:

Yes. Unless the governing documents provide otherwise the board can act without a meeting, pursuant to Chapter 617.0821 of the Florida statutes if the board vote is unanimous. If the board is not in complete agreement the issue needs to be discussed at a duly noticed meeting 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.

QUESTION:

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

Thank you for your opinion. 

ANSWER:

The board is granted its authority under the governing documents and if it is granted the authority to purchase insurance it has the authority to purchase flood insurance. Flood insurance may be required by a lender if a property 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)

QUESTION:

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.

ANSWER:

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)

QUESTION:

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).

ANSWER:

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)

QUESTION:

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.

ANSWER:

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.

QUESTION:

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?

ANSWER:

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.

QUESTION:

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.

ANSWER:

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)

QUESTION:

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.

ANSWER:

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.

QUESTION:

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.

ANSWER:

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)

QUESTION:

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.

ANSWER:

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.

QUESTION:

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.

ANSWER:

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)

QUESTION:

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)

QUESTION:

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?

ANSWER:

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.

QUESTION:

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?

ANSWER:

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)

QUESTION:

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.

ANSWER:

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.

 

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(4-18-12)

QUESTION:

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

ANSWER:

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

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

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

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

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

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

QUESTION:

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.

ANSWER:

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.

***

(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)

QUESTION:

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.

 

ANSWER:

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)

QUESTION:

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

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

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

 

ANSWER:

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

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

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

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

FIRST ESTABLISH QUORUM REQUIREMENT: "that a majority of all members entitled to vote must participate in the voting in order for the vote to be valid" This last part of the sentence establishes the quorum required in order for the meeting to proceed. If we have thirty eligible voters sixteen must attend the meeting in person or by proxy for the meeting to proceed. If only sixteen people (a majority in attendance) are present at the meeting, eleven (two-thirds) of the sixteen present must vote yes 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)

QUESTION:

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.

 

ANSWER:

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.

 

QUESTION:

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.

 

ANSWER:

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)

QUESTION:

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)

QUESTION:

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.

ANSWER:

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.

QUESTION:

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.

ANSWER:

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)

QUESTION:

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.

ANSWER:

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

Simplified Procedures Allowed by

Robert’s Rules for Board Meetings

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

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

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

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

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

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

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

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

4. No motion needs to be seconded.

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

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

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

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

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

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

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

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

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

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

 

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

Questions regarding condominium association law in Florida may write to 

Ms. Konyk c/o  The Condo News, P.O. Box 109, 

West Palm Beach, FL 33402, 

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

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