ASK 

THE 

LAWYER

By

Chelle Konyk, Esq.

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(8-25-10)

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

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

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

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

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

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(8-11-10)

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

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

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

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

***

(7-28-10)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pursuant to Florida Law:

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

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

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

Any suggestions?

ANSWER: You should first ask your neighbor if they are aware that the dogs are barking. Many times pets are left alone and the owner is not aware of the problem. If your neighbor is aware and still refuses to resolve the problem, most municipalities have an enforceable code that prohibits such a nuisance. Instead of contacting the Board, you may want to follow the procedure for you municipality. The municipal code will outline the requirements for providing a complaint about the barking dogs. For example, in Palm Beach County, a dog that "habitually barks, whines, howls or causes other objectionable noise resulting in a serious annoyance, shall be deemed to be committing an act in violation."

The remedy is that an animal control officer, upon the receipt of two (2) sworn affidavits of complaint may issue a citation to the owner or custodian of any animal alleged to be in violation. One of the affidavits can be from your property manager, if he or she has heard the dogs barking, and one can be from you and / or one of your neighbors. While it is never pleasant to have to go through the process of issuing a formal complaint about a neighbor’s pet, it is sometimes the only way to get a resolution to a barking dog.

QUESTION: I would value your opinion regarding the following situation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scenario One: There are six available seats on the board and five candidates file the necessary paperwork to run for the board. This is an election, although it was not necessary for the members to vote, since there were less people running for the board than available positions. Since there was an election, the existing board is entitled to appoint a new member to the board. The board could consider the existing member that did not file to run or they could appoint someone else in the community that is willing to serve.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for your help

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. No pets where pets are prohibited;

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

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

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

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

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

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

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

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

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

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