ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

Last Updated 08/27/2015


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.  


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(8-19-15)

QUESTION

Could you please tell me if a condo owner hires a lawyer on his own and takes our board to arbitration and the board does not have the money to pay for a lawyer can the board have a special assessment on all the condo owner to pay for the cost of a lawyer. Can we as owners opt out of the cost. Thank you.

ANSWER

A condo association pays it bills by assessing the membership to meet its expenses. Responding to a lawsuit is a common expense. Therefore the condo association has no choice but to assess the membership to pay for its defense and a member cannot opt out of contributing his or her pro-rata share.

QUESTION

Our Annual Condo Association Meeting is scheduled to be held January 2016. On the agenda will be several proposed amendments to our Declarations and Bylaws. Following our Documents, we will notify all owners of this meeting at least 14 days prior to the scheduled meeting and provide a copy of the proposed amendments and proxies for all owners not in residence. We have one owner who has been known to disrupt our meetings with comments detrimental to the Board, in particular three of the five members. He has made it clear he has a disdain for these three. He is a new owner who hasn’t experienced Condo living for any extended period of time and has very little knowledge of the contents of our documents or Florida State Statutes. We are sure he will attempt to bring to the floor amendments to the proposed Amendments we will present to the Association Membership. Can an owner have the proposed amendments be "amended" by those present? Proxies received will be cast for or against the Proposed Amendments the Board has submitted. Proxies received count towards the number of owners needed to pass or reject the proposals.

ANSWER

In order to consider an amendment – the proposed amendment must be presented to the unit owners in advance of the meeting. Therefore, a member cannot revise the amendments proposed by the board from the floor of the meeting. A member can speak to every agenda item and therefore he would have an opportunity to voice his concerns. If enough residents share his viewpoint the amendment may not pass and the discussion may lead the board to consider revising the amendment, but the members cannot vote on an amendment that has failed to be noticed to the entire membership in advance of the meeting.

 

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(8-5-15)

QUESTION

In a town home HOA, with adequate reserves, can we install a pool heater as an improvement to the common area without jumping through the hoops of sending out letters to get a 75% approval. I am a board director and would like to get this done. Our documents allow us to make improvements to common areas.

ANSWER

If the Association is a homeowners association it can proceed to install a pool heater by board vote provided there is nothing in the governing documents to prevent the board from making this decision. See next question and answer if you are a condominium.

QUESTION

My mother owns a condo in Broward County. Last year she had to replace all her windows with impact glass windows to ensure the condo could get a discount on their insurance. Now she is being told that she has to replace some of those new windows with a sliding glass door leading out onto the balcony. I believe only one resident has that configuration now and they did that illegally some years ago. My mother used to be on the condo board and says that a change like this should require 100% of the owner’s agreement. Can you please tell me if this is correct, or if instead, it requires a lesser percentage of votes to change what we consider to be the structure of the building? Thank you very much.

ANSWER

If the Association is a condominium, pursuant to Florida Statute 718.113 a vote of the unit owners may be required. Florida Statute 718.113 provides that a material alteration or substantial addition to the common elements must comply with the provisions in the declaration and if the declaration is silent as to a material alteration of substantial addition the affirmative vote of 75% of the residents is required. Therefore a change from the original windows to sliding glass doors more than likely would require the affirmative vote of 75% of the residents unless the declaration requires a higher percentage.

QUESTION

Recently my condo association sent out a survey to all residents (750 units) asking questions regarding sex, education level, employment status, mortgage status, and relationship status including whether or not I have a domestic partner. Is this even legal? The pretense of the survey was to question residents about improvements or additions to the various amenities (pool, tennis courts, clubs, etc.) available in the community.

ANSWER

There is nothing to prevent the association from conducting a survey of the residents just as there is nothing to require that you answer such a survey unless there is something in the declaration that requires you provide the association information. Very often governing documents do require the unit owners to provide the association with the name of the bank that holds the mortgage on the unit or to provide proof of insurance.

QUESTION:

Can a condo board director decline a nomination to serve as a board officer?

ANSWER:

A director is not required to serve as an officer of a corporation unless they want to accept that responsibility.

 

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(7-22-15)

QUESTION

I’m president of a condominium board. At a recent board meeting I mentioned that I want to replace our Treasurer with another board member who I felt strongly was more suited to the position. The existing treasurer was not at this meeting (he had left Florida). I proposed a present member, to whom I spoke to before the meeting, and he accepted the position. I told the board why I came to this conclusion and they nodded their understanding without much discussion.

I felt that as President I had this authority. Did I?

ANSWER

The president of a condominium, as CEO of the corporation usually has as much authority as the board allows him or her to exercise. Robert’s Rules are often cited when determining if a vote at a meeting was conducted with the proper parliamentary procedure. 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 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.

If the board did not object to your recommendation it was approved unless or until the same matter is discussed as an agenda item at a subsequent duly noticed board meeting.

QUESTION

I own a condo unit that I’m trying to sell, and have a pending sale about to fall thru. The buyer’s lender discovered a pending lawsuit (some sort of breach of contract with a 3rd party) against the Condo Association. This lawsuit was not disclosed to any of the unit owners, and is being defended by the association’s insurance company. The problem I’m having, is that none of the actual parties involved with the suit will disclose the dollar amount being sought. They are all citing lawyer/client confidentiality. The lender of the potential buyer is thus not approving the loan without knowing the amount, whether the insurance company will cover the amount in the event the lawsuit is judged in favor of the 3rd party, and whether the association’s reserves will cover any damages in the event of a loss. What rights do I have as a unit owner to successfully obtain the "confidential" information so I can sell my unit?

ANSWER

Every Condominium is required to provide the answers to specific Frequently Asked Questions to every prospective purchaser. One question in particular could alleviate your buyers concerns. Ask the condominium to comply with 61B-17.001, F.A.C. The condominium is required to provide you with the answers to all of the required questions including the following: "Is the condominium association or other mandatory membership association involved in any court cases in which it may face liability in excess of $100,000? If so, identify each such case." While the strategy the association is contemplating in defending the lawsuit may be protected, the actual pleadings can be obtained from the clerk of court. Reviewing these documents should give the lender enough information to determine if the lawsuit is going to prevent it from approving the loan.

 

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(7-8-15)

QUESTION

I am very happy to have discovered your website. I am a homeowner in Miami Beach. I am trying to stop a project my Condo Board wants to do in violation of our condo’s own bylaws which require a 75% or more majority vote from us the unit owners for approval. The project they want to do is not a normal maintenance item that does not require our vote. It’s a total destruction of our current cement balconies and its complete reconstruction with glass railings. Our condo bylaws clearly state that this type of project falls under "Capital additions, alterations or improvements" and require our vote as noted above.

This July 7th the Miami Beach Design Review Board is conducting a meeting to give its decision on this project, where I explain why this project should not proceed. I also plan to speak before them about this issue. Your advice is invaluable for me. How can I stop this project from going forward based on the fact that it is in direct violation of our condo’s bylaws?

Thank you for your consideration.

ANSWER

Perhaps your board is unaware of the requirements of the governing documents and the law which usually necessitates that a material alteration requires the vote of the membership. The DRB members may or may not understand that this change requires a vote of the membership and if it does it could make the vote of the members a condition of the approval. In the event that this matter is not decided by the membership, you could file an action for non-binding arbitration with the Division of Florida Condominiums. Pursuant to its website, the Division participates in these types of disputes because in 1991, the Florida Legislature adopted a law requiring mandatory non-binding arbitration of certain types of disputes before filing the dispute in the courts. The objective of the program is to provide a just, speedy and inexpensive alternative to litigation in the courts. If a party does not appeal the arbitration final order within 30 days from the date of the order, the final order becomes binding on the parties. Section 718.1255, Florida Statutes define disputes eligible for arbitration as any disagreement between two or more parties and the authority of the board of directors or the association’s governing document. An eligible dispute for arbitration requires any owner to take or not to take any action involving that owner’s unit or the appurtenances thereto, or involving the alteration or addition to a common area or element of the condominium property.

Also required to be arbitrated before filing an action in court are disputes involving the failure of a governing body, when required by law or an association’s document to properly conduct elections, give adequate notice of meetings or other actions, properly conduct meetings, and allow inspection of books and records.

Disputes not eligible for arbitration include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment; the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

 

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(6-24-15)

QUESTION

Our documents state that if a unit owner replaces carpet with tiles they are required to put in an underlayment to deaden the sound. The board passed a ruling that unit owners living in downstairs unit do not have to put an underlayment, but the upstairs units must. I think this is discriminating against those living upstairs. My question is can the board do this?

ANSWER

If the Board has a rule that the underlayment must be installed under tile, and the board has the right to enact rules without a vote of the members, the board could vote to change the rule to permit units on the first floor to install tile without an underlayment. If the Board is going to consider such a rule change it would be required to provide 14 days’ notice of the meeting where it will be discussed. If the Declaration of Condominium requires underlayment under tile – the board is unable to change such without the required vote of the members. The underlayment is required to prevent the sound from walking on the tile to be heard in the unit below. Since there are not any units below the first floor – it may be reasonable for the board to vote to permit those units to forego the underlayment.

QUESTION

Hello ... I own a condo unit that I’m trying to sell, and have a pending sale about to fall thru. The buyer’s lender discovered a pending lawsuit (some sort of breach of contract with a 3rd party) against the Condo Association. This lawsuit was not disclosed to any of the unit owners, and is being defended by the association’s insurance company. The problem I’m having is that none of the actual parties involved with the suit will disclose the dollar amount being sought. They are all citing lawyer/client confidentiality. The lender of the potential buyer is thus not approving the loan without knowing the amount, whether the insurance company will cover the amount in the event the lawsuit is judged in favor of the 3rd party, and whether the association’s reserves will cover any damages in the event of a loss. What rights do I have as a unit owner to successfully obtain the "confidential" information so I can sell my unit? Thank you.

ANSWER

The association should be able to provide sufficient information, without violating attorney client privilege, to satisfy the lender. In fact, every condominium is required to provide answers for the benefit of prospective purchasers to a series of questions referred to as "Frequently Asked Questions." One of the questions is "Is the condominium association or other mandatory membership association involved in any court cases in which it may face liability in excess of $100,000? If so, identify each such case." Provide the lender with the condominiums answers to the frequently asked questions to see if that satisfies the lenders concerns. If the condominium is not in compliance with providing this document, you could bring it to their attention that it is required. The form is available on the Division of Condominiums website.

http://www.myfloridalicense.com/dbpr/lsc/forms/DBPRFormCO6000-4eff122302.pdf

 

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(6-10-15)

QUESTION

Can the Association’s attorney block or place any unit owner’s email address in the Spam mode so he does not receive the email? The email questioned actions by the board and we sent it to him as the question was related to the Association matters for which the unit owners need his clarification? Can he do that? We pay his salary, this is a Miami Condo with 448 units with a Budget of approx. 1.6 Millions USD annually, we are paying him over $100k yearly for his services. Is it meant that we the property owners can’t engage our attorney for specific legal advice?

ANSWER

The association attorney represents the corporation, not the board or the unit owners. The association attorney serves at the pleasure of the Board and the board decides who it will authorize to communicate with the attorney. The unit owners are not permitted access to the association attorney unless the board authorizes such communication. The association attorney is under no obligation to communicate with unit owners and should not do so unless authorized by the board. If you have an issue of concern that requires legal counsel you will have to pursue this as an individual.

QUESTION

Each year, for many years, our condo unit owners have voted to waive funding the reserves. This occurs because when the proposed budget is sent out in advance of the annual meeting, the Board of Directors provides a dollar figure of what the monthly maintenance payment would be if full funding of the reserves were to be included and, comparatively, what it would be if the reserve funding were waived. There is considerable difference and many unit owners may choose to vote for the lesser figure. However the board each year states in the letter wording that the Board URGES the unit owners to vote for waiving the funding of the reserves. Suddenly however, there are meetings scheduled to discuss how the Association is going to make up for a huge reserve deficiency. What right does the Board have to URGE a vote one way or another especially on such a critical issue? If there is a major assessment levied to make up this deficiency the people who lived here for years but have since moved or passed away enjoyed a reduced monthly assessment but those who bought in the past few years are going to have to make up for those reduced fees in the form of a new lump sum assessment. That seems totally unfair and it’s all because the Board URGED former owners to not save for a rainy day. Would greatly appreciate your opinion on this. Thank you ... Baffled in Boynton.

ANSWER

The residents have to consider the vote to waive reserves regardless of whether the board urges them to do so. If you feel strongly about this you can also urge the residents to vote to fund the reserves. As long as there is such a mechanism that permits a condominium association to waive funding the reserves for the statutory reserves, the residents will have the option to vote to waive the funding.

 

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(5-27-15)

QUESTION

I’m the President of a Condo Association and I’m fairly new to this so please bear with me. I have a couple of questions.

#1 Can any other board member besides the president or vice president sign a contract? Although we vote on matters, our Treasurer and Secretary are trying to do things on their own without all the facts being presented and only notify the rest of us when it’s all set and done.

#2 If several board members are in violation with statues and by-laws (voting by email, altering meeting minutes, etc), what are the consequences? How can they be removed from the board? As president what can I do about it?

#3 During our Annual meeting we put our nominations for the board, a couple of days later we met and elected the new board. Originally one of the board members did not put in for the nomination and took her mother’s place when we elected the new board. Was that legal? She asked and we said okay, but we had no idea if it was allowed or not?

Thank you !

ANSWER

Pursuant to Florida Statures 718, decisions are made in a condominium association at board meetings by a vote of the majority of the Board. A board member has no authority to act on his or her own. A board member cannot make unilateral decisions outside of a meeting. There is a provision in the law for a board to conduct business by written consent in lieu of a meeting – but to ratify an action by written consent outside of a meeting requires an affirmative vote by 100% of the board.

If a board member is more than 90 days delinquent in paying a monetary obligation to the association he or she is deemed to have abandoned their position and is therefore no longer a board member. Absent such, the only way to remove a board member is by recall which would require the membership to vote remove the member pursuant to the requirements that can be found on the Division of Condominiums website.

Your annual meeting and election must be conducted pursuant to the process outlined in Chapters 61B-15 through 24, 45 and 50, Florida Administrative Code and Florida Statutes, Section 718. The process requires that all candidates submit an intent to run. If there are less candidates than positions on the board an election would not be necessary- and the new board could appoint a member to fill a vacancy.

 

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(5-13-15)

QUESTION

We live in a 24 unit condo group in Venice, Fl. We have a Bylaw that clearly states that owners can have pets limited to typical domestic animals and they must be well behaved and under control and be of a certain size and weight. The Bylaw says it is up to the discretion of the Board which pets are well behaved. There is a rule that was passed two years ago by the Board that we can only have 1 animal. I purchased the unit after that rule was in place. Both my dogs meet every stipulation of the Bybaws but no one from the Board has ever asked to meet either one. I am no longer able to leave one with my sister nearby so I have a problem. I recently was voted on the Board and have had a good look at the Bylaws and the rules and regs. and have discovered several conflicts between what is written in the Bylaws and what has become a rule. Does a bylaw supersede a rule and what do you do when they conflict. We also have a blanket Bylaw that states condo owners will follow all rules and regs.? Would really appreciate your opinion on this matter before I bring it to the Board. Thanks

ANSWER

First – your reference to the Bylaws is probably incorrect – the provision you mention is more likely located in the Declaration of Condominium. Next – as it relates to your association, you would need to engage the association attorney for specific legal advice. In general - a rule enacted by the Board cannot modify a provision that has greater authority because it is in the Bylaws or the Declaration. It is important to understand the hierarchy of governing authority for community associations. They are, in order of greatest authority to least authority, 1) Federal Law, 2) State Law, 3) Local Ordinances, 4) Declaration of Condominium (or Covenants for a homeowners association), 5) Articles of Incorporation, 6) Bylaws, 7) Rules and Regulations and 8) Robert’s Rules of Order. An association cannot amend its governing documents if the amendment will conflict with a provision or a law that has a higher authority. For example, a rule or regulation enacted by the Board cannot attempt to modify a provision in the Declaration, unless the Declaration has a provision permitting such a modification by a rule. If your Declaration states that an owner can have pets it is unlikely a rule could be enacted limiting an owner to one pet. If the intent was to allow one pet – the word would not be plural. Perhaps the Declaration has a provision that the Board can enact rules – and that would be acceptable – as long as the rule did not change or modify the Declaration. Another good example would be the ability to approve the sale or lease of a unit. Unless the Declaration provides that the Association has the right to approve the sale or lease of a unit, the board cannot institute such an approval process through a rule. However, if the Declaration authorizes the board to approve the sale or lease of a unit, the board may be within its rights to promulgate rules regarding the sale or lease of a unit.

 

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(4-29-15)

QUESTION

Hello Ms. Konyk, first let me say thank you for taking the time to answer questions for HOA’ s that owners may have. I have a 2 part question which I’m hoping you can answer. The board has determined in the last board meeting to impose a $600 a year fee for owners to park their boat in a common boat yard. The common area does have a lift gate and utilizes a card key to open. The boat yard has been in use for the past 20 years here in Perdido Key Florida. My questions: 1. Can they assess us without a vote from the owners? 2. Are they now liable for any damages/theft that could occur to boats due to the imposed fee?

ANSWER

If your governing documents authorize the board to implement a special assessment without the vote of the owners, then you board can implement such an assessment. You question does not explain what the fee is for or if it is assessed equally amongst all of the members or just those utilizing the boat yard. Unfortunately this column cannot be utilized to answer specific questions as it relates to your governing documents. As to your question regarding liability – as you are probably aware – we live in a very litigious society. Liability is ultimately decided by one party accepting the risk or by a court of law. The Association should have its insurance policy reviewed to determine if it has sufficient coverage in the event there is an action brought against it and it is determined to be liable.

QUESTION

Can a Board make separate rules for tenants and owners including pets and use of common areas? Paul C.

ANSWER

A tenant cannot be restricted access to the common areas. An owner cannot use the common areas during time his or her unit is rented as that righ to use the common areas is transferred to the tenant. As to your question regarding pets, if the Declaration of Condominium specifies that tenants may not have pets, then the board may restrict tenants from having pets. The board cannot restrict tenants from having pets by enacting a board rule.

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(4-15-15)

QUESTION

I recently learned that the board gave a Christmas bonus to the licensed cam each year without notifying the association that they are doing this. The bonus is $2,000 each year and the check is signed by the association president. I have also learned that the board is signing contracts for a retainer contract to a CPA to do the audit. We have had the same CPA for over a decade. There are no board meetings before the condo assn. to discuss these issues. We have about three meetings per year.

ANSWER

The Board does not have to have a meeting every time monies that are budgeted are spent. The Licensed Cam’s bonus is more than likely a budgeted expense that was approved at the same time the budget was approved. As to the audit by the CPA – the president is more than likely authorized by the board or the governing documents to take care of day to day business. The president approved the audit by the same CPA that has done the audit for the past ten years. Perhaps if the president selected a new auditor without the board of director’s being aware of such there may be a cause for concern. The law requires two meetings a year – a budget meeting and an annual meeting. Unless the governing documents provide otherwise or the board is making decisions privately that require a board vote, your association may very well be in compliance with the law.

QUESTION

Hello, I saw your web page and would like to ask if the resident application I filled out and my background/credit checks are private and if anyone is able to access my personal information. I have lived in this complex for three years as a renter. I just want to know if Board Members or anyone else for that matter have access to my information. Do all applications have to remain behind lock and key? I would think the Property Manager and Secretary have access. This worries me as the office is left empty often and we have gone through four Property Managers in the last year I appreciate your response. Lisa B. Florida

ANSWER

The information to approve a sale or a rental is not part of the official records of the Association. It is not necessary for the Association to retain the information after the sale or rental is approved and the information is confidential and should be protected.

 

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(4-1-15)

QUESTION

Our Condo president owns two units in here and has now moved off property and will be renting the unit he lived in. Can he still remain president??

ANSWER

Yes he can still remain president. All members are eligible for service on the board and there is nothing in Florida law to require that residency is a requirement to remain on the board.

QUESTION

Our condo board approved a cost of living increase to be effective each following year, for the maintenance person. Some owners think this needs to be approved by every future board each year, so can this decision by previous board be applied to future years?

ANSWER

As long as there is not a contractual obligation to the employee to provide cost of living raises, future boards can change such a policy. Just as the current board voted to approve cost of living raises, the next board could vote to stop issuing future cost of living raises.

QUESTION

Once an Annual Condo Association Meeting has been scheduled, what procedures must be followed in order to change the date? We would like the meeting to be held one week later than the scheduled date. Your prompt attention is appreciated.

ANSWER

The board would have to notify the members of the new date of the meeting with the same formality that was required to notify them of the first scheduled meeting, provided that the documents do not require the meeting to be held on a specific date.

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(3-18-15)

QUESTION

We have a Director in our condo association who has sold his unit and will close on it in early April. He intends to resign as of 3/31. He has several "old business" agenda items that personally involve him which he most likely will bring up at his last BOD meeting in March. Does he have to recuse himself in any vote or discussion on these items?

ANSWER

Not sure what you mean by "personally involve him" . . . in the event he will realize a personal gain from a board decision he must recuse himself. If the items in question are merely items that he was personally involved in there is not a requirement for him to recuse himself. For example, the president should recuse himself if owns a landscaping business and now that he is no longer an owner or on the board. The board may want to vote to consider hiring his company.

QUESTION

I mailed my letter of intent to run for the condo board on the 19th of February. The management company left my name off of the ballot saying they did not receive it till the 20th of February and the cutoff was the 19th. My question is, does the postmark of my letter (which they admit is the 19th) or the date they received my mail determine the cutoff date.

ANSWER

The date your intent to be a candidate is actually received is the date that matters. In fact the post mark is proof that you did not timely submit your intent as it would be very unusual for a letter to arrive on the same day it was postmarked. It is up to the candidate to make sure his or her intent is received on time.

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(3-4-15)

QUESTION

As a unit owner can I request the emails of other unit owners if they have asked to receive info from the office via email?

ANSWER

If a member elects to receive notices via email, his or her email becomes part of the official records which is subject to inspection by a member.

QUESTION

I am the President of a Condo Association. We have 8 membership meetings in addition to our annual owners meeting. In addition, as board members we meet several days in advance of each meeting to discuss what will be placed on the agenda. We do not conduct condo business or take any action or votes on any subject. All such meetings are posted as required in case a unit owner wants to attend and request something be placed on the agenda for the regular meeting of the BOD. My question is....do we to take minutes of these agenda meetings when all we do is formulate the agenda for the upcoming meeting?

ANSWER

Membership meetings are the meetings where the members can make motions and or vote on the business that is before the community – such as the annual or special members meetings. Board meetings are the meetings where the board meets to make decisions and vote on things that come before the board. The only things that should be contained in corporate minutes is the business that is conducted at the meeting. Business is conducted in the form of motions. Therefore the minutes should only contain the motions that are considered and the results of the vote on those motions. If the board meets in advance of the board meeting to set the agenda – it is not necessary to take minutes because the agenda is the record.

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(2-18-15)

QUESTION

The question is whether our condo association, the Board of Directors has the direct authority to purchase units at foreclosure sales. The wording in FS 718 and our declaration which both clearly give the ASSOCIATION the authority to acquire units at foreclosure sales, but does NOT give the Board of Directors specific authority to act. In fact, Section VIII of our By-Laws, states specifically that the Board of Directors must have the approval of the unit owners to acquire units at foreclosure auctions. This approval has never been given as there has not been a quorum present at an annual owners meeting in over 12 years.

A number of unit owners feel it would be better for the association to allow units in foreclosure to be sold, at auction, to "others" instead of the association acquiring them and they want to challenge our Board but would like an informed opinion before any further action is anticipated. Our unit owners have NO access to our Association Attorney for such questions and the BOD is very closed.

ANSWER

Let’s start with the comment at the end of your question first – a commonly misunderstood principle is the association’s attorney’s role in the association. The association attorney does not represent the unit owners. The association attorney does not represent the Board of Directors. The association attorney’s role is to represent the corporation and that role may often be in conflict with what the unit owners and sometimes even the board members expect from the attorney. The business judgment rule protects board members from personal liability if they act pursuant to advice received from counsel for the association. If the board ignores the advice of the attorney they can be held personally liable if their actions are challenged and found to be in breach of the governing documents or in breach of the law. If a unit owner or a board member feels they personally require representation, the unit owner or the board member must seek the advice of his or her own attorney.

The provisions in the law trump all of your governing documents. The provisions in your Declaration – a covenant running with the land – trump your bylaws. Your interpretation of the law is incorrect because 718.111 (9) states in pertinent part as follows: "There shall be no limitation on the association’s right to purchase a unit at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments or to take title by deed in lieu of foreclosure." No limitation means just that- no limitation.

There are two different types of foreclosures. A mortgage foreclosure is the litigation by the bank when the mortgage payments are delinquent. A lien foreclosure is the litigation by the association when the assessments are delinquent. It is not unusual for someone to confuse the two types of foreclosure. Your association is obligated to "purchase" a unit at its lien foreclosure sale if there are not any bids that exceed the indebtedness. The association places the first bid for the amount of indebtedness. If no one bids higher than that, the association is awarded certificate of title. The point of the lien foreclosure bidding process is to make sure that if anyone other than the association bids - the bid is for more than the association is owed so that the debt will be paid in full. It is more likely that your association is properly protecting the association by proceeding to foreclose its lien. It is unlikely that your association is bidding on units that bank has foreclosed.

 

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(2-4-15)

QUESTION

Hi. I live in a condo complex in Orlando. The police have been called on our neighbors many times for sound complaint’s and suspicion of domestic abuse. It keeps happening though and the police don’t seem to be able to do anything aside from swinging by and asking them if everything’s okay. These incidents occur several times a week and are both disruptive and cause concern for the possible victims safety as well as our own. I’m pretty sure the occupants are renters but I don’t know anything about the owner and the management company for the neighborhood claims she can’t do anything. Is there any action we can take through the management company or condo association to have them removed or penalized?

ANSWER

The governing documents of the association should provide the board with a remedy to resolve this situation. It may be as narrow as allowing for the eviction of the offending tenant or as broad as requiring that an owner not permit anything that may be a nuisance to others to occur on the premises. Perhaps a written request that the board look into resolving this issue through the governing documents or by legal action.

QUESTION

I stumbled onto your site and was pleased to know there is someone available to guide condo owners in a direction that will help them resolve issues.

My husband and I, as well as some other family members have purchased units in a small (24 unit) complex. We are finding the allowing of pet-friendly rentals to be causing problems. The association adopted rules about no pets being allowed in the pool area nor in grassy areas. Pets are to be taken off property to tend to their needs. Pets are also to be under positive control (held or on a leash) at all times they are outside the individual unit. We find that renters leave for the day and their pets find themselves in unfamiliar surroundings and bark all day. For owners and renters who remain on property, the noise spoils the relaxing environment.

Our documents are silent on the issue of renting to pets. The documents were prepared in 1972 and have only had one amendment which was not in regard to pets. Until 6 or 7 years ago only owners were allowed to bring their pets. When a new owner came in and acquired several units, the idea of allow pet-friendly rentals was introduced. There is no provision in the documents and there is no rule that was adopted by the Board or the owners. More than half of the current owners do not approve of pet rentals. It has been stated by one owner that the rights of the owner transfer to the renter. Since these are vacation rentals, is that the case? Since the documents are silent on this issue, there is much debate and many of us would like to know if the owner of a property that is rented for vacation (short-term) rentals can pass the right to have pets to a vacation renter. Your time and energy to respond to this question is sincerely appreciated.

ANSWER

If the governing documents have language regarding pets, the board cannot modify that language with a rule. If the governing documents are silent regarding pets the board can adopt rules regulating or prohibiting pets including restricting pets to owner occupied units. Therefore if you are correct in your analysis of the governing documents – your board can pass such a rule provided they give the unit owners 14 days’ notice of the meeting where they intend to consider this rule because it affects the use of the units.

 

***

(1-21-15)

QUESTION

I live in a condo that I bought that requires one of the owners to be 55 or older. My son is 41 years old and recently moved back from Argentina and is staying with me. I added him to my title prior to submitting the occupancy paperwork, in case something happened to me that there would be no issues. He also needed to have his driver’s license updated and used my address. I submitted the paperwork with the money for a background check and it was done and sent to the Building President. The building president is known as a "condo commando". The history with him has been difficult for me. I had issues just trying to get the appointment for my HOA interview though my condo was a cash sale because this President was having some type of surgery, and kept yelling at my realtor and me on the phone. I ended up with an extension of a month before he finally screamed a name at us that we were able to contact and have an HOA interview 3 days before my extended closing of a month. I’ve been here two years now, and it has been over a month since the paperwork came back and I encountered the board president while walking my catwalk and asked him when my son would be contacted for the HOA meeting to grant him occupancy status so that he can get his ID and have access to the clubhouse. He was rude and vague. I asked him if something came up on the background check, and he said NO, (my son has a clean background check plus an excellent credit score)...but he said this that the address on his license was my address so he hasn’t decided what to do with him. This is my first condo experience. Can they deny my son living with me as I am entitled to 2 occupants as long as they are over 18? Please advise.

Thanks.

ANSWER

As long as the Association follows the same criteria when approving or denying occupancy it will be within its rights to approve or deny a potential occupant. It does not appear from what you have said that the association will have a valid reason to deny your son’s residency since you are also a resident, thereby satisfying the Fair Hosing requirement that at least one occupant must be over the age of 55 in housing for older persons.

QUESTION

Is there a way to "search" to see if you have already answered a question? The president of our board is requiring me to send my questions to the board by U.S..mail. He states that if I use his e-mail address for my questions that he will not respond to me. All the other members of our association can contact him by e-mail. What can I do about this?

ANSWER

Many of the previous questions are available on this page (scroll down). The board of directors is not required to allow residents access via email although the board is required to respond to written inquires within 30 days. A board is permitted to establish reasonable rules regulating inquiries – such as limiting the number of inquiries a resident can make in a specific a timeframe – and/or establishing the method for making inquiries – such as via certified mail.

***

(1-7-15)

QUESTION

Our condo association is currently involved with a balcony concrete restoration project. The balconies are a limited common area of every unit with the association responsible for maintenance of the walls, ceiling, railings and concrete balcony cantilevers. The owner is responsible for maintaining and replacing as necessary the sliding glass doors and tracks, stationary glass panels, tile floor covering and hurricane shutters/tracks. The Declaration does not contain an "incidental damage" clause. The tile flooring and hurricane shutters/tracks were not part of the original construction of the building. The association required installation of both the flooring tile and hurricane shutters with passage of an amendment to the Declaration about ten years into the buildings life.

It appears that arbitration decisions support removal and replacement of sliding glass doors and windows as a common expense of the association. The tile flooring and hurricane shutters/tracks are improvements performed by the unit owner after building construction and their removal and replacement costs are generally a unit owner’s expense from what I have read. The big difference with our association from other cases I reviewed is that our association required the installation of the tiles and hurricane shutters. Would this perhaps require the association to cover the removal and installation of tile and shutters as a common expense in those cases where it was necessary for the association to perform its maintenance obligations?

ANSWER

Interesting question – especially considering that the Unit Owners ARE the Association and whether the Association or the owners pay – the owners pay. The association does not have a magic bucket of money – it pays for everything that it does by assessing the unit owners.

QUESTION

Hello and thank you for your help.

I have a quick question regarding the time frame for the association approval process. I have been told they require a month to review and accept my very much qualified tenants application. That of course sounds like too long for me. I just applied myself and I was approved in 3 days.

My question is if there is any law that can states that they cannot exceed 14 days or is that incorrect? I live in Florida. Thank you!

ANSWER

There is not a law that states the timeframe that an association has to approve or deny a tenant. The declaration may have language that deems the tenant approved if the association does not act with a specified time-frame. Refer to the Declaration of Condominium to determine if there is any restriction on the time the association has to respond. Many declarations do allow the association up to 30 days consider occupancy.

 

***

(12-24-14)

QUESTION

Hello Ms. Konyk!

I have a question regarding the installation of a chair lift or elevator in our 55+ community. The Master Board is prepared to spend up to $75,000 for modifications to a stairwell and subsequent installation of a lift. Many residents are against this. We are not an assisted living community.

The President of a neighboring community said they considered the same thing but decided against because they were told once the community begins such alterations the entire community would need to become handicap accessible. Is this true?

Thanks!

ANSWER

The installation of the chair lift by the Association may be considered a material alteration that would require the vote of the members. A review of your governing documents should reveal if this installation would require the vote of the members. This would not be considered a material alteration if the Association was permitting a unit owner an accommodation to install such a devise. The installation of such a devise either by the Association or a private resident would not trigger the need to alter the entire community to make it handicap accessible. A condominium is not usually required to be handicapped accessible unless it is open to the general public – for example there is a restaurant located on the premises that is accessible to the general public.

QUESTION

My mother owns a condo in West Palm Beach and serves on the board of a 28 unit association. Recently I purchased a unit with my fiancé in the same building and the board recently passed a resolution to amend the by-laws stating that relatives could not sit on the board at the same time. Does this amendment comply with the Florida Condominium Statute? Please advise.

ANSWER

No –this mandate by the board does not comply with the Florida Statutes. The Statutes only prohibit board membership by the owners of the same unit, unless there are insufficient members running for the board and / or a unit owner that is 90 days delinquent in the payment of any obligation to the association.

 

***

(12-10-14)

QUESTION

Is it against the law or condo rules to give the management company of your condo a monetary gift at the holidays?

ANSWER

Provided that the governing documents do not prohibit a holiday bonus, the board could vote to approve such an expenditure in the budget.

QUESTION

My Condo complex is in St Pete, Florida and has approximate 57 units with 4 individual buildings. The condos were built in 1969 with concrete block construction. The exterior is White in color with Aqua color Doors.

In the annual meeting on 12/1/14 we were informed that the board wanted to paint the complex. There was talk about painting the 4 buildings 4 different colors as well as painting all buildings 1 color. The board said that they have not decided on the color but the color would be in the pastel family of color.

Question 1: Does the Board have to have 75% app of all residents to change the color?

Question 2: Does the Board have to have 75% app on the Color?

Question 3: Does the Board have to have 75% app to paint the 4 separate buildings a different color each?

Thank You

ANSWER

The answer lies in your governing documents. Unless the governing documents provide otherwise by excluding paint color as a material alteration, a change in the color of the paint on the building would require the approval of the owners. A material alteration may be made by the Board without unit owner approval in limited circumstances if the documents permit such. If a vote of the owners is required, the required percentage will be that which is stated in the governing documents and if none is stated, the approval of 75% of the unit owners is required. Please note that code changes, modifications in available building material or alterations that are incident to the repair, preservation or replacement of existing improvements and excluded from unit owner approval.

QUESTION

Good evening. I live in a 24 unit condo, we are getting ready for our annual meeting and I’ve heard that some people want to restrict the voting rights of absent owners, basically saying that if you rent your property they want to take away your voting rights. This doesn’t seem right or legal to me. I’ve looked high and low in 718 and can’t really find an answer.

Thanks for your help!

ANSWER

You can’t find an answer because you can’t take away someone’s voting rights unless they are delinquent in a monetary obligation to the association. Furthermore – owners who rent their units are eligible to serve on the board provided they are not delinquent in a monetary obligation.

 

***

(11-26-14)

QUESTION:

Our condo docs say we must have 5 directors on our Board. One member resigned and we had 4 during the last year. In August two of the members sold their condo units which made them ineligible to serve. The requirements state directors shall be "resident members" of the association. Member being defined as an owner. The remaining directors quickly appointed a woman telling us that she is an owner.

It was recently brought to our attention that this woman is an owner but not a resident.

So it appears that since the end of August our condo association has not had a legitimate board of directors.

What happens now?

ANSWER:

Florida Law trumps your governing documents. While the bylaws may prohibit non-members from serving on the board, they cannot prohibit a member desiring to be a candidate from qualifying whether or not the member is a permanent resident.

QUESTION:

I stumbled onto your site and was pleased to know there is someone available to guide condo owners in a direction that will help them resolve issues.
My husband and I, as well as some other family members have purchased units in a small (24 unit) complex. We are finding the allowing of pet-friendly rentals to be causing problems. The association adopted rules about no pets being allowed in the pool area nor in grassy areas. Pets are to be taken off property to tend to their needs. Pets are also to be under positive control (held or on a leash) at all times they are outside the individual unit. We find that renters leave for the day and their pets find themselves in unfamiliar surroundings and bark all day. For owners and renters who remain on property, the noise spoils the relaxing environment. Our documents are silent on the issue of renting to pets. The documents were prepared in 1972 and have only had one amendment which was not in regard to pets. Until 6 or 7 years ago only owners were allowed to bring their pets. When a new owner came in and acquired several units, the idea of allow pet-friendly rentals was introduced. There is no provision in the documents and there is no rule that was adopted by the Board or the owners. More than half of the current owners do not approve of pet rentals. It has been stated by one owner that the rights of the owner transfer to the renter. Since these are vacation rentals, is that the case? Since the documents are silent on this issue, there is much debate and many of us would like to know if the owner of a property that is rented for vacation (short-term) rentals can pass the right to have pets to a vacation renter. Your time and energy to respond to this question is sincerely appreciated.

ANSWER:

If the governing documents are silent as to the whether or not pets are allowed on the premises, the board could enact a rule that permits pets in units that are occupied by owners. If the board enacts such a rule, it would be obligated to grandfather any existing pets of tenants. Another alternative would be to propose an amendment to the governing documents that would limit pet ownership to units that are occupied by owners. If the community votes on and passes an amendment restricting pets to owner occupied units, any member that has a pet would be able to grandfather that pet.

 

***

(11-12-14)

QUESTION:

I live in a condo in Clearwater Florida, and I was just told by a neighbor that the board members are going to kick out any condo’s (sic) that have roommates or significant others living with an owner.

For example my boyfriend has lived with me over 2 years and nothing has EVER been said. I also have a neighbor that has a roommate that has lived there over 5+ years. Is this legal?

ANSWER:

Your association must have the authority to approve occupancy granted it in the governing documents. It may be time barred from enforcing this provision if it has failed to consistently enforce this provision for some time.

QUESTION:

I have a question for you. I along with other owners found out that our Condo board awarded a raise of $25,000.00 to our manager of our building without our approval, he was previously making $65,000.00, we were told that the manager conducted a survey and he told our board president that was the salary he should be making, first off, is that large of a pay increase in one year legal for a board to give out without residents being told, and second, would the board president be in breach of his financial fiduciary duty by giving out this big a raise without residents knowledge?

ANSWER:

Without trying to determine if the information you have is factual or the raise is appropriate– it is within the Board’s power to set the salary of the manager. The board is elected to conduct the business of the association and that includes setting the manager’s salary unless there is something specific in the governing documents that states the manager’s salary must be approved by a vote of the owners. Do not confuse language that may be in the governing documents that requires a vote of the members if there is a special assessment or a capital improvement. The raise that the manager is receiving is part of the operating budget therefore it is not a special assessment or a capital improvements.

 

***

(10-29-14)

QUESTION:

We requested in writing to the Management Office of our condo a list of unit owners. They only sent us a list of their names and unit numbers. The Office Manager sent an e-mail stating that he was advised that in accordance with the most recent changes to the condominium statute, they can no longer give out any personal information of the unit owners or tenants, such as their phone numbers, email addresses etc. We only want the list to include phone numbers. This was taken from the 2014 Florida Statute we found online.

(12) Official Records (c) 5… "Notwithstanding the restrictions in this subparagraph, an association may print and distribute to parcel owners a directory containing the name, parcel address, and all telephone numbers of each parcel owners. However, an owner may exclude his or her telephone numbers from the directory by so requesting in writing to the association. An owner may consent in writing to the disclosure of other contact information described in this subparagraph…"

After reading the statute, it appears to us that we should be able to get a list of the unit owners, including their phone numbers, unless they request in writing to the association to exclude this information. Please advise if we are correct and would appreciate a response.

ANSWER:

Unless the Unit Owner has requested that the telephone number be excluded or if the association does not have the telephone number, management should provide you with the telephone numbers.

QUESTION:

Dear Ask the Lawyer, I am the president of a 48 unit condo association, assessments are based on the size of each unit. Some residents have come to me complaining saying eleven years ago the assessments base was changed. The recreation fee use to be the same for each unit the Board at that time changed it, so the recreation fee would be based on the size of each unit so even though everyone has the same use of recreation and carports with two parking spaces. They want to change the recreation fee back to the way it was eleven years ago they say it was not explained to them properly and they were tricked into changing it. Where do I go from here our Docs say we need 75% of the owners vote to change it ,that’s not going to happen when 60% of the units assessments would go up if it was changed back. The way I see it unless I have proof that the change was done incorrectly I can’t do anything about it. I am going through old minutes and committee reports from eleven years ago. Any advice would be welcome. Thank You.

ANSWER:

Unless your governing documents state otherwise, a vote to change the proportionate share of assessments paid by each unit requires the affirmative vote of 100% of the members. If your Declaration states that you may change the proportionate share by an affirmative vote of 75% of the members and that percentage was achieved with the first vote, you can surmise that it was done correctly. If your Declaration does not specifically state that a vote to change the required proportionate share of assessments paid by each unit is less than 100% your vote may be invalid. The required number of votes required to change the proportionate share is not the same as the required number of votes for a Declaration amendment – it must be stated that the vote to change the proportionate share is less than 100%. If it is a subject that is of great concern to the unit owners, perhaps an attempt to revisit it and let the residents vote again is warranted. If you are unable to achieve the required percentage you have at least attempted to satisfy the vocal members and you can move on.

 

***

(10-15-14)

QUESTION:

My husband and I own a condo and our daughter and her boyfriend were supposed to move into it this week. The condo association came back and said that her boyfriend can’t move in because of his background check. He has a battery charge from 2009, this was a fight between him and his brother. He was also charged in 2011 with marijuana possession. We have known him for over 2 years and know he made some mistakes but he is a good person. They told us he can’t move in to the apartment. Is this legal? Thank you for your help.

ANSWER:

The Condominium Association can prevent your daughter’s boyfriend from occupying the unit as long as they have the authority to approve occupancy granted in the governing documents and they apply the criteria consistently to all proposed occupants.

QUESTION:

Our condo docs say that owners have the right to all condo reports, financial info, etc. When asked for a copy of the manager’s contract, we were given a copy with the salary figure whited out. Is this legal?

ANSWER:

Pursuant to Florida Statute Chapter 718.111, personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records are not accessible to unit owners. For purposes of this subparagraph, the term "personnel records" does not include written employment agreements with an association employee or management company, or budgetary or financial records that indicate the compensation paid to an association employee. To further illustrate this often confusing subject - personnel records that may be excluded are the actual payroll reports of the individual employee and / or written reports regarding employee disciplinary issues, health insurance information or other insurance records. Therefore the Association should not have redacted the salary of the manager that was listed in the contract as the law does not provide that it has such authority.

QUESTION:

Before looking for a unit in a South Florida 55+ residential, gated condominium community I’d like to know if such communities must comply with the ADA. I am particularly interested in hearing assistive devices for hearing aid wearers in the Theater.

ANSWER:

The Americans with Disabilities Act (the "ADA") was passed by Congress in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 USCA §12101(b)(1). The ADA provided that, in order to eliminate discrimination in public accommodations, new construction and alterations of public facilities and commercial facilities would be required to be accessible by disabled individuals. 42 USCA §12183. However, the ADA is typically not applicable to condominium or homeowner’s associations, as the ADA is only applicable to public accommodations, such as office buildings, restaurants, hotels, or stores. Therefore associations are not usually required to comply with ADA requirements although under the Fair Housing laws they cannot prevent you from using your own hearing assistive device as long as it does not interfere in the ability of others to hear the performance.

 

***

(10-1-14)

QUESTION:

I’m currently over 90 days past due on my association obligations. Can the association prohibit the parking of my vehicle on my assigned parking space and tow the car? That is what they have done in order to strong arm and try to collect. My wife and I own one car each and our names are on the title.

ANSWER:

The Association cannot tow a car from its assigned parking space using the justification that the unit owner is delinquent

QUESTION:

Can the President of the board with 154 units install speed bumps ($1300) without board approval? After many residents’ discussions and lawyer consultation, the President (six months later) approached the board for legal approval of said speed bumps. Subsequently, the residents voted against having the speed bumps. Is the President liable for his illegal and unapproved act? Your response will be much appreciated.

ANSWER:

The board president, as CEO of the corporation, has as much authority as he is granted by the governing documents and the board. If the board permitted the president to make such decisions in the past, it is not likely that the president would be held liable for the expenditure of funds. In fact boards often vote to allow the president to spend funds up to a certain amount without board approval. If this is a condo, the speed bumps may have required a vote of the owners if the installation was considered a material alteration and such a vote was required by the governing documents. The president would not have had the authority to use his board approved authority to circumvent a requirement of the governing documents or Florida law. To cross the line to require the board present to be liable for his actions would require that it be shown that the president breached his fiduciary duty, and it is highly unlikely that the action would be considered such a breach. Liability questions are difficult to answer because liability is usually determined as a result of a lawsuit or legal action.

 

***

(9-17-14)

QUESTION:

Recently when the Hoa Board of Directors of our 49 unit condo association was about to begin an open meeting, I arrived to attend the meeting. When I had a seat in the common area where the meeting was about to take place, I was asked to step away because a discussion among the board members and the property management representative was taking place concerning the "sinkhole problem" was being discussed and that it was a "PRIVATE MATTER" that I didn’t have the right to hear. I was told it was a matter only the Board was allowed to know. And, if I had any questions concerning the matter, I would need to contact a law firm representing the HOA or Board members, which I could find the contact info on the information board near our mailboxes. If I am a resident owner in this 10 acre six building community, shouldn’t I have the right to know the results and findings of the sinkhole inspection? I am concerned due to the effect on property value, insurance costs and possible future HOA fees. I do know that since the inspection, several resident owners living in or near a area of concern have moved out of their properties and have listed their villa/condos for sale. Even renters moved out within 60 days after the inspection by professional inspectors. Can the HOA BOARD and QUALIFIED PROPERTY MANAGEMENT, our Management Company withhold this information from other owners who live in this HOA or make it difficult to obtain the results? Is this legal? Thank you for any help you may offer concerning my questions.

— Sincerely, KS

 

ANSWER:

You are entitled to be present at any meeting that is not attended by the association attorney or another attorney that is hired by the board to discuss threatened or pending litigation. There is nothing,other than threatened or pending litigation or personnel matters in a community association that is restricted from discussion or classified as a private matter. As a shareholder or member of the corporation you are entitled to be apprised of all matters that affect the corporation. If sinkholes have been discovered on the property, it certainly is a matter that would affect you as a member of the Association. It would be prudent of you to make a request for the official records of the association as they relate to this matter. In the event the board refuses to provide such information you can make a complaint to the Division of Condominiums as it regulates things such as the failure of the board to supply you with the official records. Furthermore, the association attorney would be unable to provide you with additional information that the board could not provide you with. It would be highly unlikely for the association attorney, who represents the corporation, to communicate directly with members. You may also want to request any and all insurance policies that the association has purchased.

 

***

(9-3-14)

QUESTION:

A lot owner submitted a proposal to install a retractable awning system on his dwelling to the Architectural Review Board ("ARB"). We understand that the ARB denied the request and that the owner then appealed the decision of the ARB to the Board of Directors and the Board also denied the request. The owner now claims that the proposed awning is an energy device based on renewable resources pursuant to Florida Statutes, Section 163.04.

ANSWER:

Florida Statutes, Section 163.04 is frequently misquoted or cited in error. The statute only applies to "solar collectors, clotheslines, or other energy devices based on renewable resources." Florida Statutes, Section 196.012(14) which is a companion statute that was created during the 1980 legislative session along with Florida Statutes, Section 163.04 defines "renewable energy source devices" as follows:

(14) "Renewable energy source device" or "device" means any of the following equipment which, when installed in connection with a dwelling unit or other structure, collects, transmits, stores, or uses solar energy, wind energy, or energy derived from geothermal deposits:

(a) Solar energy collectors.

(b) Storage tanks and other storage systems, excluding swimming pools used as storage tanks.

(c) Rockbeds.

(d) Thermostats and other control devices.

(e) Heat exchange devices.

(f) Pumps and fans.

(g) Roof ponds.

(h) Freestanding thermal containers.

(i) Pipes, ducts, refrigerant handling systems, and other equipment used to interconnect such systems; however, conventional backup systems of any type are not included in this definition.

(j) Windmills.

(k) Wind-driven generators.

(l) Power conditioning and storage devices that use wind energy to generate electricity or mechanical forms of energy.

(m) Pipes and other equipment used to transmit hot geothermal water to a dwelling or structure from a geothermal deposit.

Pursuant to the rules of statutory construction, presumably all other items would be excluded, except that sky lights and solar light tubes have been allowed in prior cases and they are not listed. Given that there have been no cases allowing window film or awnings in the past (which are devices that reflect the sun rather than harness the sun’s energy for heating or lighting), it is our opinion that the Association notify the owner that an awning does not qualify as an energy device based on renewable resource and that his most recent request is still denied. We are not aware of any challenges having been raised to date by members of any associations on the issue of awnings being a renewable energy source and we have found no case law to support a contrary opinion.

 

***

(8-20-14)

QUESTION:

Our HOA approved an assessment to install a gate. We obtained two contracts, both of which were significantly higher than the amount for which we had approved the assessment. Our president said that we can pay for the additional expense for the gate by adding money from 1) the operating budget and 2) monies to be received from a bank for a recent foreclosure settlement. Is this allowed?

ANSWER:

First – let me suggest that in the future all boards heed this warning: Get the bids for completing a project BEFORE moving forward with a vote to special assess. As to your question – if operating funds are available, the board can use operating funds to supplement the special assessment. Any funds that are added to the operating account can be used, including funds received in settlement of a mortgage foreclosure. We would caution that the board cannot cause a shortfall in the operating account in order to fund the gate – it can merely use excess funds that are available. If there are not any funds available in the operating account, the Board will have to proceed with another vote to special access.

QUESTION:

I need immediate help. I recently bought a unit in a mobile home community 55 and older. The Realtor knew I had a son with disabilities that needed to live with me. I’ve received a letter saying my son has 7 days to vacate the property. I spoke to Management this morning and did not get a good feeling. He said he would call the lawyer but that was all he could do. I’m freaking out, I have documentation of my son’s disabilities. He is 21 and has nowhere else to live. Can they do this? There are PLENTY of underage people living here as well. My son is not the only one. Please help.

ANSWER:

If the reason your son is being asked to vacate is because he is under 55, the Fair Housing Laws are clear – as long as one occupant is over 55 and no occupants are under 18, your occupancy (if you are over 55) and your son’s occupancy would not affect the communities status as Housing for Older persons. Request that the association put the reason they want your son to move in writing. If the Manager is telling you your son is ineligible to live there because he is not in compliance with the requirements for Housing for Older persons he is mistaken. The association cannot deny your son’s occupancy on this basis without the association being guilty of housing discrimination. Furthermore, if they are denying your son’s occupancy for any other reason, you may be eligible for an accommodation under the Fair Housing Laws as they relate to disabled persons. Complaints for mishandling of such requests for accommodation are often handled by your local Office for Equal Opportunity.

***

(8-6-14)

QUESTION:

If possible could you please help with my question concerning my condo and the Board authorization of approving / denying a tenant.

In 2011, the Board or the managing agent added another section to the Condominium Rules and Regulations section "Leasing of Units" saying the following: Proper notice to the Association and subject to the terms of the Declaration of Condominium and its by-laws, the owner shall: i. Get proper docs from property manager; ii. Pay a transaction fee of $75; iii. Set up an interview time to have lessees meet with the Interview Committee (Not sure there is one); iv. Lease must be approved prior to occupying the Unit; v. Owner provides a copy of background checks for prospective Lessee.

I do not have a problem with most of these addition but since I live overseas, it is difficult to get to the office plus I was not aware prior that the Board is looking to approve/deny a lease?

Here are my questions:

1. What is the process that they can change the Condominium Rules and Regs to add the above information that was not outlined in the original Declaration of Condominium docs?

2. In reviewing the Declaration of Condominium documents dated 2002, nowhere does it give the Board authorization to deny or approve leases and does not contain any parameters for any decision making.

Therefore, I am challenging the authorization of approving and/or denying by the Board. The Board denied my tenant on "Poor Credit." Do I have any recourse against the Board who has denied them on just looking at their credit history and also on the fact that within the Declaration of Condominium the Board does not have any authorization to deny a rental lease? I would very much appreciate it if someone could please advise me as to what I can do?

ANSWER:

In the first pages of the Declaration there is language that states something like "Developer hereby declares that all of the real property described above shall be held, sold, conveyed, leased, mortgaged and otherwise dealt with subject to the easements, covenants, conditions, restrictions, reservations, liens and charges as hereinafter set forth; all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of said real property." This language trumps the Board’s authority to promulgate rules regarding transfers if the authority to approve or deny is not specifically granted somewhere in the Declaration. The board merely having the authority to promulgate rules is not sufficient unless the authority to approve or deny a sale, transfer, or lease is first granted in the Declaration. The reason the authority has to be granted in the Declaration is because the Declaration is a covenant running with the land. Unless an amendment has been properly passed by a vote of the owners, the board’s attempt to approve or deny leases would not survive a legal challenge.

If the Association has the authority, granted in the Declaration, to approve or deny sales, transfer or leases, the board can promulgate rules or criteria for such approval in order to remain consistent and to avoid issues of selective enforcement. A low credit score can be included as a reason for denial if the board has such authority. It would be appropriate to send the Association a letter outlining your concerns and requesting that they ask the Association attorney to advise them as to whether or not they do in fact have the proper authority granted to the Association to approve or deny a sale, transfer or lease. One more issue would be the following: "Owner provides a copy of background checks for prospective Lessee." The owner cannot provide a copy of any credit reports or background checks that are obtained in connection with a lease. These reports are protected by privacy laws and the association has to obtain an application from the prospective tenant and make its own request for the reports. The reports should never be shared and must be protected.

 

***

(7-23-14)

QUESTION:

I live in a condo with 176 units, consisting of one multi story residential building. Adjacent to the building is a pool, tennis court and large open area that at one time was designated by the developer to be used for parking. This open area is the subject of my question. The area is not currently being used for parking, it is now just a large open deck covered with pavers. Other parking is available. The survey attached to the Declaration of Condominium indicates that the open area is to be used for parking. The county building and zoning department indicates that without a change in "use" the area cannot be used for any the purpose, other than parking.

Some members of the community would like to change the use to allow a recreation area to be built. The association is aware that a 75% vote of the owners is required to change the common elements. However, I am concerned only with a change in legal use of the property. A change of use of part of the condominium property may result in a change of the contract/Declaration of Condo between the owner’s and the condominium.

Bottom line, would the condominium’s request for a change of "use" from the county require the approval of only the majority of the Board members, or 75% vote of approval of the unit owners, or 100% approval of the unit owners?

ANSWER:

Without reading the provisions of your governing documents this should be considered a material alteration requiring the vote of the owners. Unless the governing documents require a greater percentage, the residents could vote to approve a material alteration with a vote of 75% of the owners. The change in use would not require 100% merely because county approval is required.

QUESTION:

Our HOA does not send a newsletter very often (none in the last two years) and when they do it has no news. Few people attend the board meetings and if they do they are never offered a copy of the minutes. Do I need the approval of the Board to write my own Newsletter and send it to the members of the Association as long as it contains only public information that would be available in our public documents and states it is a personal newsletter?

ANSWER:

As long as you keep it factual and do not misrepresent your publication as an official publication on behalf of the Association there should not be an issue with you writing your own newsletter. Perhaps you could approach the Board of Directors to ask for their input or assistance. You may find that they would welcome the opportunity to contribute to you publication. Also – it would not be appropriate to publish the minutes or any of the official records of the Association. While it is undisputed that each unit owner is entitled to view the official records of the Association, that right does not include the publication of official records. Each owner who wants access to the records must make such a request on behalf of themselves.

 

***

(7-9-14)

QUESTION:

If our by-laws say we shall have seven board members but we can only get five to serve on the board, what constitutes a "quorum"? Three or four?

ANSWER:

The answer to this commonly confused issue is found in the Florida Statutes, specifically Chapter 617, which governs not-for-profit corporations such as condominiums. The correct answer is FOUR pursuant to Florida Statute 617.0824 which states in pertinent part "1) Unless the articles of incorporation or the bylaws require a different number, a quorum of a board of directors consists of a majority of the number of directors prescribed by the articles of incorporation or the bylaws . . ."

The key here is that the quorum is based on the number of directors prescribed by the Articles or Bylaws – not those actually serving. If your Articles prescribed nine board members, instead of seven, the quorum would be five, even if only five are serving. There is another "quirk" that has to be considered in a condominium if the bylaws do not clearly state a definitive number of board members. If your bylaws said the board shall consist of "three to nine board members" but it does not provide a method to determine how many, there is case law that requires that the board shall be comprised of five members.

QUESTION:

I live in a condominium association with a board of directors of 9 members. My question is about an article in our Amended and Restated Declaration of Condominium.

Article 18.2 states: Approval: Except as elsewhere provided, amendments to the Declaration of Condominium must be approved by not less than a majority of the votes of the entire membership of the Board of Directors and by not less than a majority of the votes of the members of the Association present or by proxy and voting at a membership meeting.

My question is about the word "entire" in regard to the board of directors when they vote on whether or not a document should be changed. Would a quorum be the same as entire? I personally believe that the word entire was inserted into that document to ensure that the opinion of all board members was debated before a vote was taken to change a document.

ANSWER:

Your governing documents may contain what an English teacher may define as a run on sentence, which is not uncommon in many governing documents. (A run-on sentence occurs when two or more independent clauses — also known as complete sentences — are connected improperly.) You often have to dissect each sentence and parse every word because of the way the governing documents are written. In addition to your question regarding the vote required of the board – there may be some confusion as to the required number of votes required from the membership – is it the majority of those present or the majority of the entire membership? If a comma had been placed before the "and", the comma would correct the grammar issue and it would have made the interpretation easier.

In my opinion, and please confirm with your legal counsel regarding the interpretation of your governing documents, it would make it easier to interpret this provision if you treat the sentence as two separate sentences to decipher the meaning.

For example: "Except as elsewhere provided, amendments to the Declaration of Condominium must be approved by not less than a majority of the votes of the entire membership of the Board of Directors." This should be interpreted to require the majority vote of the entire Board – not merely a majority of a quorum of Board members present. If the entire board is comprised of nine members and only five are present and voting, the affirmative vote of five members, which is a majority of the entire board, is required. This is because of the inclusion of the word "entire". In addition, Florida Statute 617. 0824 states "(3) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or the bylaws require the vote of a greater number of directors." Therefore, to comply with your Declaration and the law, a majority of the entire board is required to ratify the amendment.

The next part of sentence has a different result: "Except as elsewhere provided, amendments to the Declaration of Condominium must be approved by not less than a majority of the votes of the members of the Association present or by proxy and voting at a membership meeting." This should be interpreted to require an affirmative vote of the members present if it is established that there are sufficient members present to establish a quorum.

Therefore a majority of the entire board and less than a majority of the entire membership could ratify the amendment.

 

***

(6-25-14)

QUESTION:

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

ANSWER:

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

QUESTION:

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

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

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

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

ANSWER:

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

***

(6-11-14)

QUESTION:

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

ANSWER:

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

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

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

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

***

(5-28-14)

 

QUESTION:

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

ANSWER:

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

***

(5-14-14)

QUESTION:

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

The judge’s order also contains the following conditions:

• Resignation as president of the association

• NEVER serve as a leader on any board of directors

• Not run for office at any time.

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

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

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

ANSWER:

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

QUESTION:

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

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

ANSWER:

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

QUESTION:

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

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

ANSWER:

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

***

(4-30-14)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

 

***

(4-16-14)

QUESTION:

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

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

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

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

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

I appreciate your response.

ANSWER:

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

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

QUESTION:

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

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

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

ANSWER:

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

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

 

***

(April 2, 2014)

QUESTION:

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

ANSWER:

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

If hurricane protection or laminated glass or window film architecturally designed to function as hurricane protection has been previously installed that complies with or exceeds the current applicable building code, the board may not install hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection except upon approval by a majority vote of the voting interests.

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

QUESTION:

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

ANSWER:

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

 

QUESTION:

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

 

ANSWER:

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

 

***

(March 19, 2014)

QUESTION:

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

ANSWER:

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

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

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

***

(March 5, 2014)

QUESTION:

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

ANSWER:

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

QUESTION:

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

ANSWER:

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

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

 

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(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."

 

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(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.

 

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(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.

 

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(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.

 

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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.