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***
(1-11-12)
QUESTION:
What
can a condo association do when a condo unit owner has not
paid fees. The fees are picked up by all others in condo
assoc. There is a $72,000 mortgage on the empty condo, which
is worth about $18,000 now. We do have a lien on the condo,
but that does not pay the bills.
If
we buy it, we will be responsible for the mortgage. What can
we do to get the condo, or sell it , so that fees can be paid
by the next owner?
When
foreclosing on a lien, how does the condo association not have
to pay the existing mortgage?
We
have a lien, but how do we foreclose WITHOUT assuming the
mortgage?
Signed,
STUCK with a dead-beat.
ANSWER:
First
things first, if you are referring to foreclosing on the lien
when you say "buy" the condo, you are referring to a
process which will allow the association to take possession of
the unit through a lien foreclosure subject to the mortgage.
You will not be responsible for paying the mortgage because
you are not a party to the mortgage. When and if the bank
forecloses on its mortgage, you will lose any interest in the
unit that you gained from foreclosing on the lien. As a party
with an inferior interest to the first mortgage holder you
will lose all interest when and if the bank forecloses. That
is why you must determine the risks versus the gains in
foreclosing on the lien.
If
you will more than likely be in possession of the unit as an
interim owner and the unit can be rented (and income
producing) and you can recover your loses including legal fees
by collecting rent, it may make sense to foreclose on the
association’s lien for unpaid assessments etc. and to gain
possession of the unit. If the unit is trashed, there are
restrictions preventing rental, or the bank is very close to
foreclosing on the mortgage it may not make sense to foreclose
on the unit. There are procedures that an attorney may be able
to implement to "push" the mortgage foreclosure
along. Each situation has a host of circumstances that will
make it unique and the association should seek the advice of
legal counsel before proceeding. Some owners are so disruptive
that an association may want to proceed with the lien
foreclosure to simple evict the delinquent owner from the
unit.
***
(12-14-11)
QUESTION:
Our
documents do not define "what is a capital
improvement." We obtained more than 85% approval of our
owners to convert 2 saunas to an office because it was a
material alteration. Would you classify that as a ‘capital
improvement? Many thanks. I just read 2 years of your opinions
and find them extremely well written and informative and as
accurate as I am aware of as a 17 year long serving Board
Member.
ANSWER:
A
capital improvement is defined by Black’s Law Dictionary,
9th Edition as "An outlay of funds to acquire or improve
a fixed asset." If you have an existing use that requires
a vote of the members to convert that use to something else
that would be considered a material alteration requiring the
vote of the members. Whether or not an additional vote is
required to expend the funds as a capital improvement to
convert the sauna to an office depends on the governing
documents. While the governing documents do not always define
a capital improvement, the governing documents will often
state an amount of money that cannot be exceeded for a capital
improvement without the vote of the members. If this
conversion will cost less than the threshold amount that the
documents give the Board the authority to spend for the
capital improvement, it will not require a vote for the
expenditure of the funds. If the total amount for the project
is an outlay of funds in excess of the amount the board is
authorized to improve a vote of the members is required.
***
(11-30-11)
QUESTION:
I
own a condo in an association that is one of four residential
associations in our resort. We have a Master association that
has a representative from each association sitting on its
board. Our condominium has a large storage room underneath the
building located directly under one of the condominiums. Our
board recently gave the Master association the right to
utilize our storage room for their maintenance shop. This was
done without a vote or knowledge of the membership of our
association. It was my understanding that this storage room
was common property to our association and that each owner
owned an undivided share of this storage room. No owner was
presently using the storage room. Should there have been a
vote and if so what percent is required to change the use of
our common property?
ANSWER:
Without
having read your governing documents it is not possible to
answer this question in regards to your situation. Whether a
maintenance shop is a material alteration to the use of this
area for storage also depends on a review of the documents. In
general, any material alteration to the common elements in a
condominium governed under Florida Statute 718 requires a vote
of its members. If this use is in fact deemed to be a material
alteration to the common elements, then the affirmative vote
of the members would be required. If the declaration as
originally recorded or as amended does not specify the
procedure for the approval of a material alteration to the
common elements, 75% of the total voting interests of the
association must approve the alteration.
QUESTION:
We
are currently a smoking building, with two units that have
smokers. Our Board is getting complaints from the units
surrounding them that the smoke is wafting into their units.
Their clothing and furnishings are starting to smell. What can
we do as a board to make this a non-smoking building and do we
have to grandfather the two units in? Thank you for your time
ANSWER:
Many
areas in a condominium building are non-smoking because of The
Florida Clean Indoor Air Act. The areas where the ban could be
enforced under Florida Statute 386.204, would be condominium
common elements such as hallways and stairwells. Whether the
board has the right or the authority to ban smoking inside a
unit could be challenged unless there is a provision the
Declaration that bans smoking within a unit. Furthermore, even
if the residents passed an amendment to ban smoking within a
unit, such a ban would be very difficult to enforce as it
would require the board to prove that a resident is smoking
within their own home. While it is no doubt a serious issue,
the board may not be able to solve this issue on behalf of the
residents. Perhaps the unit owners need to be advised to work
this out among themselves without the board getting involved
unless there is clear authority in the Declaration for the
association to resolve this issue. Very often, residents
expect the board to handle things that could be handled simply
by letting the resident that is smoking know that their smoke
is wafting into another unit. The use of filtering ashtrays or
room filters by the residents may help to resolve the problem.
***
(11-16-11)
QUESTION:
Is
there any legal law/rule in the State of Florida that
determines of any specific place where the Ballot Box should
be placed for the voters to deposit their ballots or can this
box be placed at any secure area?
ANSWER:
There
is no requirement under Florida Law or Florida Administrative
Code Chapter 61B, that requires the use of a locked ballot
box. Very often it is apathy among the members of the
community that causes a long standing board to continue to
serve year after year. There may not be any candidates running
for the board or perhaps there are the same number of
candidates as there are open positions. In any event, the
ballots can be inspected after the meeting, although the
identity of the voter must not be revealed. The outer envelope
must be opened at the meeting after its validity is confirmed.
It is a violation of the Florida Administrative code governing
condominiums if the opening of these envelopes is conducted
prior to the meeting, in the event there is a need for an
election to select candidates if more members are running than
there are positions. At the meeting the inner envelope is
separated from the outer envelope. Once all of the envelopes
have been separated, the inner envelopes are opened and
counted.
If
the members of the Association feel that the management or the
board is not being forthright, the Florida Division of
Condominium, Timeshares and Mobile Homes can be petitioned by
the members to monitor the election. Fifteen percent of the
total voting interests entitled to vote at the annual meeting
or the owners of six units entitled to vote at the annual
meeting, whichever number is greater, may petition the
ombudsman for the appointment of an election monitor to attend
the annual meeting of the unit owners for the election of
directors and conduct the election of directors. Perhaps this
would alleviate the concerns of those that feel the election
process is flawed, but it also requires the participation of
the unit owners to actively seek enough signatures to secure
the percentage required.
***
(11-2-11)
QUESTION:
My
mother is an owner in the association and I live in the unit.
She lives out of state. She wanted to know if there was a way
for me to run for the condo board in her stead. From what I
have researched I don’t think it is possible. Someone told
me if she was elected to the board I may be able to sit in her
place as proxy but, from what I have found the proxy has to be
given to another owner.
ANSWER:
A
proxy is a method for establishing a quorum and it could also
be a method for appointing someone to vote on your behalf in
matters that the owners’ vote on. It is not a method for an
elected board member to transfer his or her responsibilities
as a board member. Some bylaws do not require that a board
member be an owner, although most times ownership is a
requirement for serving on the board. If the bylaws of your
mother’s condominium do not permit a non-owner to serve on
the board, your mother would have to put your name on the
condo deed as a owner if you want to run for the board. This
is not something I would recommend unless you consult a tax
professional that is versed in estate planning.
QUESTION:
I
own in a condominium association in Florida. We are governed
by 718. My board recently proposed a by-law amendment and
voted to send it to the homeowners for their vote and
approval. The amendment would change eligibility for board
membership. Specifically it states that if you serve on the
board of a select group of condos within our resort that you
may not sit on our board. Florida State Statutes
718.112(2)a(d)1 and 718.112(3)a. states "any unit
owner". Even if approved by the required percent of
voting interest in the association would this be a legal
amendment? Many of us own in more than one association within
the resort. Can the present homeowners vote to take a right
away from another homeowner that is contrary to State Statute?
ANSWER:
We
would agree that the Florida Statutes would trump the proposed
amendment. Every owner is eligible to serve on the board. If
serving on one board creates a conflict with serving on
another board, the owner with the conflict should address the
conflict and recuse himself from the vote. If it becomes an
issue, perhaps they should resign. But the Florida Statutes
are clear in that any unit owner is eligible to serve and an
amendment that attempts to circumvent the requirement of the
law would be invalid.
***
(10-19-11)
QUESTION:
Our
condominium Association BOD has approved construction,
changing & altering common ground/land without owner
approval for a bocce ball court. This is a $20,000 project,
and in order to construct this bocce ball court on association
common land, a significant well established planting area will
have to be removed (changed or altered). This plant removal is
a significant alteration and change to the over-all
landscaping plan by the developer and adds significant cost to
the bocce ball court. We feel this is a violation of 718.113
(2)(a). How can five Directors work their individual wish list
using common land without owner approval? Do they have any
limitations?
ANSWER:
The
declaration or governing documents of the condominium may
grant the board the authority to proceed and together with
Florida law it would define the limitations of the board.
Florida Statute 718113(2)(a) provides that the board must
follow the provisions in the declaration before undertaking a
material alteration or substantial addition to the common
elements. Pursuant to the statute, if the declaration is
silent, then the board must follow the provisions of the
statute to proceed. The statute would require the vote of 75%
of the total voting interest of the association to approve a
material alteration or substantial addition to the common
elements if the declaration does not provide otherwise. If the
addition of this Bocce Court is deemed to be a material
alteration or substantial addition to the common elements and
the declaration is silent, a vote of the members, not just the
board would be required. There are several other factors that
should be considered such as if this is an improvement to an
already existing amenity. Finally, a review of the declaration
would be required to see if this item is classified as a
capital improvement or other classification that either
requires the vote of the members to collect the funds required
from the unit owners or is authorized by a vote of the board
only.
***
(10-5-11)
QUESTION:
The
developers of our condos are our Board of Directors and now
want to turn the board over to the unit owners. There are
several of us (myself included) that have no or little
experience but are very interested and willing to do our best.
We want to have a meeting open to all unit owners to share
information before we actually vote on the new Board of
Directors. We requested to hold this meeting in our clubhouse
on the condo property which is a common area. The developer
refuses to let us meet in the clubhouse or any common area
stating that it is because of liability reasons. From
everything I can find including 718.123 Right of owners to
peaceably assemble.— the developer has no right to not
allow us to meet in the clubhouse or am I misunderstanding? I
also checked with our insurance provider and they said that
there is no problem with liability.
I
asked our manager if she could give me the name of the
developer that is saying "no" but she said that she
isn’t allowed to give names. Since the developers are our
Board of Directors don’t we have a right to the name?
My
husband and I recently purchased our unit and I have tried by
contacting the condo manager to get the names of our Board and
to get a copy of the minutes for the meeting that took place
right after we purchased our condo. We never received a notice
of the meeting and the monthly dues were raised. I was first
told that I could not get a copy and when I persisted I was
later told that I would have to write a letter to the board
and request a copy. The management company is out of town and
it is next to impossible to get any cooperation from the
current board (developers). I think it is going to be
extremely difficult working with these developers. What would
you advise?
ANSWER:
Here’s
the good news, in fact it’s all good news. You are almost
done with the developer. You should have more control after
turnover of the "business" of the condominium to the
unit owners. A word of caution though - the first board after
turnover is the most important board the condominium will ever
have and you are wise to be thinking ahead.
First,
go to www.sunbiz.org. This website lists every corporation in
the State of Florida and its officers. Search by the name of
your condominium and you will find the names of the officers
of your condominium and also the name of the registered agent
for the condominium. Send all correspondence and requests to
the registered agent for the corporation. .
Second,
read the governing documents for your condominium. This will
be your first source of information. Residents are often
confused by the governing documents. The Articles of
Incorporation establish the corporation. The Declaration of
Condominium will contain the restrictions and covenants and it
will usually be the document that addresses issues such as the
use of the common elements, among other things. The clubhouse
may or may not be a common element, it depends how your
condominium was set up by the developer. The Bylaws are
usually the document that address board matters such as how to
become a director, how to call a meeting of the board and the
members, how to conduct the annual meeting, how to collect
assessments and things of that nature. All three of these
documents and the rules and regulation together with Florida
Statute 718, which governs condominiums and Florida Statute
617, which governs not for profit corporations will be
valuable sources of information.
Finally,
a word of caution, do not wait for the developer to assist you
in establishing an ad hoc committee to move things along. This
group is not elected by the members but if you can organize a
small group in advance of the turnover of the association from
the developer to the residents, this committee can often share
their talent and experience and come up with a business plan
to establish the steps required for a successful turnover and
to protect the residents through turnover. Ask others that you
know that live in condominiums to see if there are attorney’s
in your area that specialize in condominium law. Very often
one of these attorney’s will assist the ad hoc committee at
no charge in establishing the first and in my opinion the most
important board the condominium will ever have. After the
board is establish it should hire professionals to make sure
that all issues are resolved with the developer before the
turnover of the condominium to the residents is completed.
Usually this will include a CPA, an attorney and very often an
engineer. Turnover of the condominium from the developer is a
very exciting time and if handled properly you will avoid many
pitfalls that those that don’t plan ahead are faced with.
***
(9-21-11)
QUESTION:
Our
condo docs call for 2 unassigned parking spaces per unit in
our parking garage. The Condominium Board has recently decided
to sell the 4-5 closest spaces on either side of the building
entrance. Can the Board arbitrarily decide to sell these
common area spaces without a majority vote of owners, as our
docs clearly state there is no assigned parking? A response
would be greatly appreciated.
ANSWER:
Without
reviewing your governing documents, it seems that a vote of
the residents should be required to "sell" parking
spaces. The declaration of condominium describes the
condominium property and its improvements. There should be a
survey and a plot plan attached that will identify the
ownership of the parking spaces. The selling of parking spaces
is a material modification to the common property. In some
limited circumstances the board may be permitted to make a
material modification to the condominium property without the
vote of the residents, but if this right is not specifically
included in your documents, then a vote of the residents is
required. If the declaration does not permit the board to make
this modification, then the law requires that 100% of the
residents approve such a modification to the common property.
***
(9-7-11)
QUESTION:
Is
there a Florida Condo law which states that an association or
board must provide owners with some method of communication
between themselves? We are not allowed to put up flyers near
mailboxes or post anywhere on our property. We are not allowed
to have a for sale sign on our cars. There are two enclosed
and locked bulletin boards at our clubhouse but owners are
prohibited from using them. We have no way to offer an item
for sale or even to give it away or see if another owner might
have something we are looking for. Many of us have called a
charitable organization to come remove an item only to find
out that another owner had been looking for just such an item.
We have asked at board meetings and are repeatedly told
"no". What can we do?
ANSWER:
You
should run for the board. Although you may find that the
policies your board has established have merit. There is
nothing in Florida law that requires a board or an association
to be responsible for personal communications among the
residents. If you do not want to run for the board, you can
establish your own method of communication independent from
the board. Perhaps a website or a newsletter could provide you
with an outlet to share information with the residents? The
email addresses that are on file with the association are part
of the official records of the association if the resident
provides the board permission to disclose his or her personal
contact information. If you are creative and you have the time
to put together a method for communication you will have
established a neighborhood resource.
***
(8-24-11)
QUESTION:
Article
718.112, 2d of The Condominium Act states in part, "A
person who has been convicted of any felony...is not eligible
for board membership unless such felon’s civil rights have
been restored for a period of no less than 5 years as of the
date on which such person seeks election to the board."
What
should be done if it becomes known that a director was
convicted of racketeering and fraud in another state in the
late 1990’s? How should a condominium association proceed?
How can it be determined if the alleged felon’s civil rights
have been restored? If not, will the state of Florida take
action to force their removal or must it be accomplished
politically at the next election? Are there civil or criminal
penalties for serving as a director if ineligible because of a
criminal background?
ANSWER:
If
an owner is a convicted felon whose civil rights have not been
restored for a period of no less than five (5) years, that
person is not eligible for board membership in a condominium
or a homeowners association in Florida. One would hope that an
owner that is not eligible would resign upon being informed of
such a requirement. In Florida a convicted felon is ineligible
to obtain a voters registration card. One way of verifying if
a person’s rights have been restored is to contact the
supervisor of elections in the county where the resident is
domiciled and inquire if the person has registered to vote and
for how long they have been registered. Without asking each
board member to verify their status by submitting to a
criminal background check, we know of no other way to force a
person to reveal such information. The Department of Business
and Professional Regulation would have jurisdiction over this
matter and it has issued a ruling that all of an individual’s
civil rights must be restored in order to be eligible to serve
including the right to bear arms. If you have knowledge that
someone has been convicted of a crime that is considered a
felony in Florida you should require that they resign from the
board. If the person refuses, you should contact the
Department of Business and Professional Regulation.
***
(8-10-11)
QUESTION:
How
long should we expect to wait for the minutes of our Annual
Meeting. It has been 8 months and we’ve only received a
notice of new Board members but no minutes of the meeting
itself. And how long should we have to wait for minutes of
regular Board meetings? We don’t get them sometimes for
months due to the fact that the Board negotiates among its
members and changes the minutes regularly (the President makes
a recording and so do I.) The members of the community are
months behind in knowing about any business conducted and the
rumor mill is unreliable at best and shouldn’t be the way we
are getting our info. Thanks for any information you can give
me as our Documents are silent on this issue.
ANSWER:
The
minutes of the meeting should include a description of all
pertinent items and should restate all motions and the results
of any votes. The minutes should not be a word by word
transcript. The minutes should be available for inspection
after that have been prepared and approved by the secretary.
This is usually done when the Board approves eh minutes at the
next meeting of the board. You mention you attend and tape
record the meetings, therefore you do have a record of what
took place and you will be able to verify the minutes are an
accurate reflection. The association is not required to
provide the members with copies of the meeting minutes
although it is required to make them available upon request.
The
minutes of an Annual meeting are approved at the next Annual
meeting of the members. It is customary for the board to
notify the community as to the results of an election if it is
held at the annual meeting. Often the only business that takes
place at the member’s annual meeting is the election of the
Board.
***
(7-27-11)
QUESTION:
The
original By-Laws of our not-for-profit Homeowner Association,
duly filed in the County provides the fol-lowing language
regarding the filing of future By-Laws:
Any
instrument amending, modifying, repealing or adding By-Laws
shall identify the particular Section or Sections affected and
give the exact language of such modification, amendment, or
addition or the provisions repealed. A copy of each such
amendment, modification, repeal or addition certified to by
the Secretary or Assistant Secretary of the Corporation shall
be recorded amongst the Public Records of the County. (*
this section has never been amended)
Over
the years some not so diligent Boards of Governors would
neglect to record newly adopted Resolutions and By-Laws, and
amendments, modifications, additions, and redefinitions
thereto. Then, sometime later, (even years later) a new Board
might wake up and revisit and file some of the earlier
overlooked filings, and untimely file those By-Laws, and
include Resolutions, Rules & Regulations, Policy, etc.
Never has it been practice to follow the requirement that the
exact language and particular Section be identified.
My
questions, please:
1.
Is any enactment as a By-Law, Resolution, Rule &
Regulation, Policy, etc., valid and enforceable if it had not
been filed among the Public Records of the County?
2.
When does any such enactment or amendment thereto, become
effective…the date it is adopted by the Board, or the date
it is filed?
3.
Is it fatal that identifying the exact language and Section is
omitted?
Thank
you for your reply
ANSWER:
If
the document being amended is required to be re-corded in the
Public Record to be effective, then it is not effective until
it is recorded. The language in your documents does not state
that the amendment is not effective until it is recorded, just
that is shall be recorded. This could be interpreted as a
requirement to record the amendment before it is effective
since the use of the word shall means recording is required
and not optional.
All
amendments should contain the original language with a strikethrough
of any language that is being removed and an underline
on any language that is being added. If a previous board
neglected to file the documents correctly, this is a flaw that
can be corrected by filing an amended and restated document.
It would take an effort on the part of the board or someone
designated by the board to correct the errors. If the records
kept by previous boards are not complete, with a certificate
of amendment stating how the amendment was ratified, it may
even require a new vote pursuant to the requirements of the
document being amended.
The
governing documents may permit the board to enact rules and
regulations through the authority of the board. Most boards do
not record rules and regulations unless the governing document
authorizing the enactment of rules and regulations by the
board require recording. In your example the bylaws are
specific in that it says they shall be recorded in the public
record. The requirement to record the bylaws does not extend
to rules and regulations unless the recording of the rules and
regulations is specifically mentioned.
***
(7-13-11)
QUESTION:
Does
a condo board in the state of Florida have to respond to
resident’s emails? Or must they be submitted as certified
letters? Our Miami condo board has been informed by many
concerned residents in regards to a distressing situation by
email of our concerns. We asked questions with the expectation
of being informed in a timely manner. I don’t feel they are
bad people though this is an issue they’d like to quietly go
away. However it is far too serious a matter to dismiss and if
not dealt with compromises our building. How do we rightfully
get responded to as residents that voted them into office with
the expectation of being responsive to our concerns?
ANSWER:
Email
is not a reliable method of communication. Often emails never
get delivered to the intended recipient because of an error on
the senders part or because there may be filters to block
receipt of emails on the recipients server. Under Florida law,
there is not a requirement that board members have an email
address available to the residents or that board members
accept emails. There is not a requirement that an association
accept emails.
SEND
A CERTIFIED LETTER, if there is something that requires action
by the Association or the Board. This guarantees that you have
documented proof of your concern. Additionally, if a response
is required within a specific time frame, it is proof positive
of when the request was made and when it was received. Do not
rely on a casual method of communication, such as email, for a
matter that is "far too serious a matter to
dismiss." If it is in fact that serous – send a
certified letter, which is the only reliable method of
communicating a serious concern.
***
(6-29-11)
QUESTION:
My
husband and I own a townhouse in a 4 unit townhouse community.
We rent ours out to a young couple with two children.
Recently, the president of our homeowners’ association
stated that this couple had some friends visiting and were
using the common area pool. The president specified that the
renters were in violation of rules which she claimed state
that our two bedroom unit can only allow 2 people per bedroom
to use the pool. This seems very arbitrary and suggests
discrimination. Can this be true?
ANSWER:
Without
a review of your governing documents, it is not possible to
give a specific answer. Your governing documents may in fact
limit the number of guests allowed at the pool at one time -
but I would doubt that such a rule limiting guests is based on
the the number of bedrooms. Perhaps your rules state that no
more than two (2) persons per bedroom can occupy a unit and
the president may have this confused with the guest privilege
provision.
While
on the subject of association rules, it is important to note
the hierarchy of governing authority for community
associations. They are, in order of greatest to least
authority, 1) Federal Law, 2) State Law, 3) Local Ordinances,
4) Declaration of Condominium (or Covenants for a homeowners
association), 5) Articles of Incorporation, 6) Bylaws, 7)
Rules and Regulations and 8) Robert’s Rules of Order. An
association cannot amend its governing documents if the
amendment will conflict with a provision or a law that has a
higher power. For example, a rule or regulation enacted by the
Board cannot attempt to modify a provision in the Declaration,
unless the Declaration has a provision permitting such a
modification by a rule. A good example would be the ability to
approve the sale or lease of a unit. Unless the Declaration
provides that the Association has the right to approve the
sale or lease of a unit, the board cannot institute such an
approval process through a rule. However, if the Declaration
authorizes the board to approve the sale or lease of a unit,
the board may be within its rights to promulgate rules
regarding the sale or lease of a unit.
***
(6-15-11)
QUESTION:
I
live in a 90 unit condominium in Florida. Our Board of
Directors are continuously holding meetings that are not
posted. Our Community Association Managers are also present.
Can they do this?
ANSWER:
No.
the board cannot have a meeting unless it is noticed. It is a
requirement of Florida condominium law that all meetings be
posted, regardless of whether or not they are open to the
membership. Unless the governing documents provide otherwise,
the following notice is required for meetings: Board
Meeting – 48 hours posted with agenda. Budget Meeting-
14 days mailed (with a copy of the proposed budget) and
posted. Annual Meeting - 60 days for first notice, 14
days for second notice, mailed, delivered, or electronically
transmitted. Board meeting to levy special assessment-
14 days mailed and posted – must include the purpose and
estimated amount of special assessment in the meeting notice. Board
meetings to adopt rules regarding parcel or unit use – 14
days mailed (along with a copy of the proposed rule) and
posted. Members Meeting – Pursuant to Bylaws, usually at
least 14 days mailed or delivered. Committee Meeting
– Committee that takes final action on behalf of the board
or makes recommendations to the board regarding the
association budget must notice meetings 48 hours in advance,
and the meetings must be open to unit owners. Meeting with
Association Attorney – Must be noticed 48 hours in
advance, but are not open to unit owners when the meeting is
held for the purpose of seeking or rendering legal advice.
***
(6-1-11)
QUESTION:
I
am hoping you can answer the following as I am having a
difficult time obtaining an answer. Can a condo association
require its owners who rent out their units, sign an addendum
to lease, pertaining to collecting rents, without it being
part of the bylaws or governing documents? I ask because my
association will not process my lease renewal until I sign
this and cannot provide a date as to when this was made a
requirement to rent out our unit nor how the unit owners were
made aware of this requirement. Any help you can offer will be
highly appreciated.
ANSWER:
The
governing documents of an Association may or may not grant the
right to approve leases. In the event your association is
granted this right, it may be able to require the completion
of an addendum to the lease. If the documents permit the
association to approve the lease, it is more than likely
permitted to require a lease addendum that would permit an
association to collect the rent from the tenant if the owner
is delinquent in paying assessments. If you are current in
your obligations to the association this right of the
association to collect the rent would not apply to your
situation, even if you sign the addendum. Regardless of
whether or not you sign the addendum, the association has the
right, pursuant to Florida Statute 718, to collect the rent
from tenants if the owner of the unit is delinquent. In fact,
House Bill 1195, which is awaiting the signature of the
Governor, addresses this very issue, making it clear that the
intent of the provision in the law is to collect all monies
owed, including past assessments. It sounds like your
association is being proactive in that they are not standing
by while a unit owner fails to pay the assessments when due,
while profiting from the rental income.
***
(5-18-11)
QUESTION:
I
live on the second floor of a 55 plus condominium unit. Due to
illness, I must move to the first floor in a different
Association since none are available where I presently live. I
am selling my unit. The Board has stated in writing that I may
sell to a man who is 53 and still working in another state as
long as he does not move into the unit until he is 55. That is
fine with both of us. The problem: The Board demands that he
sign a Judgment Consent Letter which they are unable to
provide to me for signature, and the Association attorney does
not return calls and I am simply lost as to what to do and
where to get a copy of this document which I never heard of
before. Can you please help me? My buyer is driving from Ohio
to Florida to close on the deal but they simply will not
assist me. Can you give me direction as to where I can obtain
such a document? Our Board has never been helpful to anyone as
you can ascertain from my email. Thank you so very much.
ANSWER:
Without
a review of your association’s governing documents, only a
general answer can be provided. Before a community can claim
adult/senior status, the authority must be granted in the
Declaration of Covenants. If the right is granted in the
Declaration, a community claiming senior/adult status is
required to register with the Florida Commission of Human
Relations and state that the community is compliant with the
requirements in order to qualify for this status. This
requirement must be submitted in writing, on association
letterhead and signed by the president. If your condominium
has registered as a senior/adult community, the law requires
that 80% of the units must have at least one occupant that is
55 years of age or older to maintain its status as an
adult/senior community. Some associations may have rules
restricting this further by requiring 100% of the units to
have at least one occupant that is 55 years of age or older.
If
the association is not granted the right in its Declaration
that allow it to operate as an adult/senior community under
the Fair Housing Amendments Act of 1988, the Housing for Older
Persons Act of 1995, and the Florida Fair Housing Act, it
cannot impose restrictions on occupancy based on age.
Furthermore, if the association is not registered as a 55 and
older community with the Florida Commission on Human Relations
it cannot operate as an adult/senior community.
Your
association has requested that your buyer provide them with a
document that will assure them that he will not occupy the
unit until after he is 55 years of age. A judgment consent
letter would not be the proper form for such a request, as a
judgment consent letter is a method for avoiding a legal
proceeding in regards to a debt that is owed.
Perhaps
your association will accept a sworn affidavit from your buyer
that he is on notice that his purchase is being approved by
the association on the condition that he not occupy the unit
until he is 55 years of age or older. A sworn affidavit is a
written statement made by a person who is under oath to tell
the truth about the facts and information contained in the
statement. Usually, the affidavit must be witnessed and signed
by a person who is legally authorized to administer oaths,
such as a notary public. When a person signs a sworn
affidavit, he or she is promising that anything contained in
the statement is accurate and true. Effectively, it is the
same thing as orally presenting testimony in court. If a
person lies about the information contained in the statement,
he or she could be prosecuted for the crime of perjury, which
is lying under oath. If convicted, the person may be ordered
to pay significant fines or may even be sentenced to time in
jail. If this fails to satisfy the association, you should
contact an attorney for advice.
***
(5-4-11)
QUESTION:
My
four unit condominium has termites. The owners are about to
have the building tented but we have an owner that refuses to
vacate. The association has notified us that they cannot
proceed until we get all four of the unit owners to cooperate.
What are our rights and responsibilities?
ANSWER:
You
cannot tent the building until all owners have vacated since
the process and the chemicals are hazardous to humans and
pets. There are arbitration decisions that support the
association in requiring unit owners to vacate to permit the
tenting and fumigation of the building. In one such case, the
arbitrator ordered the unit owner to cooperate with tenting
because the maintenance of the common elements is the
responsibility of the association and the board’s decision
on the method (tenting) of carrying out its responsibility is
presumed correct under the business judgment rule.
Unfortunately, the association may have to proceed with legal
action in order to force the owner to vacate, unless it is
able to convince the owner that he must cooperate.
***
(4-20-11)
QUESTION:
The
residents of our condominium are contacting the board to tell
us we cannot enforce our documents or Florida law. This is a
result of an article in the newspaper that said we our
governing documents must contain language "Subject to
Florida Law, as amended from time to time" or similar
language. Is this true?
ANSWER:
The
commentator was referring to the inclusion of language in the
Declaration saying that future amendments to Florida Statutes
Chapter 718 are automatically applicable to the governing
documents. This language is referred to as "Kaufman"
language. The article implies that any changes in the statutes
are not applicable to your community unless the
"Kaufman" language exists in the Declaration. Most
statutory changes will apply to your community regardless of
whether the Kaufman language exists in the Declaration. This
is particularly true of changes regarding procedural operation
of the Association. While it is helpful to have that Kaufman
language in the Declaration, it is not essential. In the event
the Association is considering revising its Documents, we
would recommend including the Kaufman language, but not having
the language, in most instances, will not prevent the
Association from complying with Florida laws as they are
amended from time to time.
***
(4-6-11)
QUESTION:
Apparently,
squatters have taken up residence at one of the homes in our
sub-division and the owners of the home do not want to spend
the money on the court costs to have them evicted. Back in
December, several vehicles showed up and proceeded to move
into an unoccupied dwelling that was being foreclosed.. What
we think happened was that the individuals cleaning the inside
and outside of the residence let on to friends or
acquaintances that the home was vacant and probably would not
be able to be sold due to the condition (roof and interior
damage). The real estate agent was advised that this was
happening and they advised the owners, the sheriff was called
and they decided not to evict them since the illegal tenants
gave a good story to them that went like this, "We
answered an ad to rent the dwelling and signed a lease to move
in".. We don’t think this was the case, we believe that
the story is false. Now the owners refuse to evict the tenants
since the home is going into foreclosure. There is a revolving
door of cars going in and out of the neighborhood. How can
they be evicted, more than likely not paying taxes, and just
using the area and school system without proper paperwork. Any
advice?
ANSWER:
Here
is the good news – the Association, pursuant to Florida law
can evict the "squatters" if the owners are also
delinquent in the payment of any monetary obligation due the
association. The Florida legislature has included a very
important provision in both Chapter 718, governing condominium
associations and Chapter 720 governing homeowners
associations, regarding collection of assessments, which may
be applied to your particular situation. If a unit is
occupied by a tenant, and the unit owner is delinquent in
paying any monetary obligation due the association, the
association can demand and require that the tenant pay the
rent to the association to satisfy the monetary obligations
owed to the association. The association must make a
written demand to the tenant. The demand is continuing in
nature. Upon demand, the tenant must pay the monetary
obligation owed the association until the association releases
the tenant or the tenant discontinues the tenancy. The
association must mail written notice to the unit owner. The
association must provide receipts to the tenant for any
payments received. A tenant who acts in good faith in response
to the association’s written demand is immune from any claim
by the unit owner. If a tenant prepaid rent, and the tenant
provides written evidence to the association of same, the
tenant shall receive a credit for the prepaid rent and must
make subsequent rental payments to the association. The
landlord/unit owner is required to provide the tenant with a
credit against rents due for the amount of money the tenant
pays to the association. Moreover, most important to the
association it can evict a tenant if the tenant fails to pay
the required payment to the association. Contact your
association attorney to see if this provision can be applied
to accomplish your goal – the eviction of the tenant.
***
(3-9-11)
QUESTION:
Are
there any legal or other means of substantiating that the
owner of a condo unit does not occupy the unit? The reason for
the question is that her daughter, who is only 51 years of
age, is living in the unit alone without approval by the Board
of Directors to be an occupant. The regulations require that a
person under 55 years of age can only be an occupant if a
person over 55 years of age is also occupying the unit. We are
a senior condominium association.
Both
the owner of the unit and her daughter contend that the older
person, the owner, occupies the unit. However, the owner also
owns a condominium in a different community, where we believe
she resides. As far as we can discern, the owner has not
occupied the unit from the time she closed on it last year.
Her car is occasionally seen on our premises for one or two
hours but never overnight. Her application for purchase of the
condominium stated that she alone would be living in it for 6
months during the year.
ANSWER:
You
should first require the unit owner to provide an application
for the approval of the occupant in the unit that is not an
owner. If the association requires that the owner be in
residence for an occupant less than 55 years old to be a
permanent resident, you might request the owner to provide you
with a copy of a driver’s license verifying that they are
using the residence as their permanent residence or require
that they provide a verified affidavit that the owner is using
the unit in your association as her permanent residence.
Another
idea is to check the property appraiser’s website to see if
the owner has filed a homestead exemption for either property.
If it is filed for the unit in your association and you
suspect that the owner is living elsewhere, the property
appraiser may be able to look into this further as an owner
must live in the residence where they have filed for the
exemption. If they have filed for the homestead exemption at
the other property, the owner has established that they are
not living in the unit and is therefore in violation of your
governing documents.
If
the occupant/daughter is classified as a guest, because the
owner is not present, the association should review its policy
regarding guests in a unit. Many associations require an owner’s
presence for a guest to be in residence and others have a time
limit that a guest can occupy a unit. The association has a
duty to pursue this matter because not pursuing it could have
serious consequences in that the community could lose its
status as a 55 and older community if more than 20% of the
units are occupied by someone under 55 without a person 55 or
older also in residence and/or the association could be
prevented from enforcing a rule that it is found to have
ignored.
***
(2-23-11)
QUESTION:
A
unit owner moved out of her condo and she did not sell her
unit. She now has some people living in the unit and she says
they are not renting. She comes back on the weekends to prove
she still lives there. Our bylaws state you cannot rent your
unit. How do we prove she does not live here? We have several
unit owners who witnessed her move out and saw the tenants
move in. Can you please give us some advice to bring to the
board so they can take the necessary action? Please help us.
ANSWER:
The
first step you want to take is to review your governing
documents to see if the unit owner is violating the provisions
that govern the length of time a unit owner may have
"guests" in a unit. If there are provisions limiting
unit owners guests in the governing documents and if those
provisions are being violated the board could simply pursue
this as a guest in violation of the the provisions in the
governing documents. In Florida, this would require notice and
an offer to mediate before the association pursued all legal
remedies against the unit owner. Another suggestion would be
to investigate further by looking into things such as any
vehicles that are owned by the unit owner and her
"guests." If this is a long-term rental chances are
the vehicles owned by the occupants of the unit will be
registered to the unit address. If the guests have vehicles
registered to the address of the unit that could establish
that the occupants are permanently residing in the unit and
that they are not guests. Perhaps the association attorney
with the assistance of a diligent board can clearly establish
the status of the occupants of the unit and pursue this first
through meditation. This is not something the board should
ignore or they may be unable to enforce this restriction
against rentals in the future.
***
(2-9-11)
QUESTION:
Can
a unit owner assign the right to vote in election to another
person by power of attorney?
ANSWER:
No,
the statute is clear that a unit owner shall not permit any
other person to vote his or her ballot. Persons holding a
power of attorney may attend a board or a membership meeting
in the owners place if the documents do not specifically
restrict this. They may also vote in matters other than the
election of directors.
The
bylaws for most condominiums permit absent owners to
participate and vote in membership meetings by proxy, except
that a proxy shall not be used in the election of the board.
All condominium board elections must be by ballot completed by
the member entitled to cast the vote.
QUESTION:
Our
condominium vice president never comes to meetings, Can the
board replace him?
ANSWER:
Most
bylaws provide for a person to be elected to the board as a
director and the director’s vote for the officers at an
organizational meeting. If an individual is elected to the
board as a director, an individual can be removed as an
officer with or without cause by a vote of the board, unless
the bylaws are specific as to removal. If the members elected
the person to be the vice president, the officer cannot be
removed by the board and must be removed by the vote of the
membership.
***
(1-26-11)
QUESTION:
Can
a board member collect mileage payments for the use of her car
when used for association business?
ANSWER:
A
board member is entitled to the reimbursement of reasonable
expenses that are incurred in the performance of their duties.
Before a reimbursement is made, the board should have a
written policy as to what will be reimbursed. In addition, a
specific accounting of expenses should be required before any
reimbursement is made. Whether a board member is entitled to
mileage reimbursement depends. For example, if there is a
meeting that the board member has to attend on behalf of the
association that could be a reasonable item to request mileage
reimbursement. If the board does not have a written policy to
allow for this, the board member should get board approval
before attending the meeting if they are expecting
reimbursement so that there is not any confusion as to what
the board member should expect.
QUESTION:
Under
718.303, which governs Condominium Associations or under
720.305, which governs Homeowners Associations, does the board
have the right to cut off cable tv to an owner who is more
than 90 days in arrears with his assessments?
ANSWER:
Good
question. The first place the association needs to look for
this answer is the bulk cable agreement. The contract between
the association and the provider must have a provision that
requires the provider to disconnect unit owners upon
notification by the association that an owner is delinquent in
payments to the association. Absent such a provision in the
contract, the provider is not likely to disconnect the
service. If the contract has such a provision, the provider
will cooperate and the service can be disconnected. This
question is often asked because the statutes that govern state
that a utility cannot be disconnected. Cable tv is not a
utility and unlike water, electric and gas for example, there
are multiple providers available that can provide television
programming on a retail basis to an individual.
***
(1-12-11)
QUESTION:
We
have a board member that pays his condominium dues late. Can
he run for the board if he is not up to date on his
assessments?
ANSWER:
When
a director is more than ninety (90) days delinquent in the
payment of any monetary obligation due the association, he or
she is deemed to have abandoned the office and removal is
automatic. This same board member can run for a position on
the board in an upcoming election, but at the time he takes
office he must be current in all obligations to the
association.
QUESTION:
We
are a small HOA community with two units having liens on the
unit for back monthly maintenance charges. One unit has been
empty for over three years. Taxes are being paid. The unit is
not up for sale, but it is tied up in the families of the
deceased owner. There are two banks also involved. Our
question is if the unit is sold how far back does the law
state we can collect the back fees?
ANSWER:
If
the unit is sold to an independent third party, the
association can collect all of the fees that it is owed. If a
unit is also in mortgage foreclosure and the lender forecloses
the on the property the statute provides that the association
can collect 12 months of the past due assessments or an amount
equal to 1% of the mortgage, whichever is less. Without having
the specific details of this situation there appears to be
additional options. The association can foreclose its lien
subject to the mortgage – and it could rent the unit to
offset the monies owed until the bank forecloses. If the units
are being rented the association can step in the shoes of the
landlord and collect the rent.
***
(12-29-10)
QUESTION:
The
condominium association board has imposed a fee of $1000 per
year upon any owner who wants to rent his unit for any amount
of time during the calendar year. The Board did this without a
vote going to the membership.
ANSWER:
The
collection of a fee for simply having the privilege to rent a
unit is not allowed under Florida law, even with a vote of the
membership. If the governing documents permit the approval of
a tenant, a fee not to exceed $100 may be charged in
conjunction with the lease approval application. Some
governing documents permit the collection of a refundable
deposit to ensure that the tenant does not damage the common
areas or association property. Rental restrictions are
enforceable as long as they are authorized by the governing
documents and provided there has been uniform enforcement by
the association of the restrictions. If the governing
documents do not authorize the payment of an application fee
or the collection of a deposit to cover damages by the tenant
to the common area the Board may not collect either fee.
QUESTION:
Our
Board president recently entered into a contract with Comcast
for a new term without the vote of the owners. Do the unit
owners have any say in the matter if we are signing a $500,000
contract for a seven-year period?
ANSWER:
If
the condominium documents so provide, the cost for
communication services such as Internet or cable TV may be
considered a common expense. If the documents do not make such
a provision, the board of directors has the authority to enter
into a bulk contract for these services as long as the
contract is for a minimum term of two (2) years. The charges
must be allocated equally per unit even if the unit owners do
not share the other expenses in the condominium equally. The
unit owners do have an opportunity to vote to cancel a bulk
contract that the board entered into if it follows the
procedure outlined in Chapter 718.115 (1) (d) 1 of the Florida
Statutes. The motion by an association member to cancel a bulk
communication services contract must occur at the next regular
or special meeting of the members (not a board meeting)
following the contract’s approval by the board. The annual
meeting would be an example of a members meeting where any
association member may make a motion to cancel the contract.
If the motion is not made at the first members meeting
following the ratification of the contract by the board, if
the motion fails to get a second, or if it fails to pass by a
majority of those in attendance at the meeting, the contract
is ratified for the balance of its term.
***
(12-15-10)
QUESTION:
Our
condominium documents have a term limit provision for
directors, which is a maximum of three (3) consecutive terms
of two (2) years each. The Association got an opinion in 2009
that term limits were not allowed under Florida law and then
got an opinion from a new lawyer in 2010 stating that term
limits are allowed. Which one is correct and if the board will
not allow someone to run based on term limits, what is the
remedy?
ANSWER:
The
governing documents will prevail because the law does not have
a provision that voids term limits if they are required by the
governing documents. Since this dispute involves the
enforcement of the governing documents and the dispute is not
in regards to a perceived violation of Chapter 718, the
Division of Florida Condominiums, Timeshares, and Mobile Homes
will not intervene. If the governing documents have a
provision that permits a maximum of three terms, then the
board is required to abide by that provision.
QUESTION:
My
question is regarding pets. Our governing documents clearly
state that owners can have pets. It further states that no
guest, lessee or invitee shall bring any animal whatsoever
onto the Condominium Property. The question arises regarding
long-term tenants that desire to bring a pet onto the
property. If the owner doesn’t care if the guest has a pet,
and since when your unit is rented out the owners rights
transfer to the renter can this argument be used for an owner
allowing a long term tenant to have a pet when our docs state
differently. Thank you for any light that you can shed on this
question.
ANSWER:
If
the governing documents state that only owners may have pets
and that no guest, lessee, or invitee shall bring any animal
on the Property – then only owners may have pets. The
confusion here is because the law says a tenant receives all
of the use rights in the association property and common
elements. The law does not say the tenant gets all of the
rights of the owner. The provision is in place so that an
owner does not attempt to retain the use rights of the common
area amenities such as the pool and fitness center. The owner
of the unit retains access rights as a landlord but that does
not include access to the pool or the fitness center.
***
(12-1-10)
QUESTION:
Several
of the owners have stopped paying their dues (assessments) for
a variety of reasons. What action does the association have
available to collect the owed amounts? The other owners are
having their dues increased to cover the unpaid amounts.
ANSWER:
It
is frustrating when a unit owner does not pay their
assessment, yet continues to enjoy the benefits that are
provided to the members by the association. Although an
association should file a lien to protect its interest, it is
not always practical to foreclose on the lien and take
possession of the property. Several factors must be considered
before the association considers taking title to the
delinquent property. Whether the association is able to rent
the unit and have it become income producing is one of the
first things that should be considered. Many units are in such
disrepair that the association would have to make a sizeable
investment prior to offering the unit for rent. Even though
the association takes possession of the property subject to
the mortgage and it is not obligated to make any mortgage
payments, there are other costs that the association will be
responsible to pay. Most water utilities charge a fee even if
the water is turned off. It may be advisable to keep the
electricity on in the unit, especially in a condominium that
shares interior walls with another unit. Some associations
will take on these responsibilities to force the
"eviction" of a unit owner that is troublesome to
the the association.
In
addition to filing and foreclosing on a lien, Florida Statute,
Chapter 718 permits an association to suspend a unit owner’s
right to the use of the common areas and to step in and
collect the rent if the unit is rented.
***
(11-17-10)
QUESTION:
Why can we not get all of the channels we used to receive from
our Cable TV Provider, Comcast? We have been told there is a
switch to Digital programming – but we are not sure what
that means?
ANSWER:
Comcast is in the process of
"migrating" channels from analog to digital, which
means that cable customers will soon have to have a
"box" on every TV to view all of the cable tv
programming that may be included with your homeowner
association dues. The reason Comcast is migrating the channels
is to be able to offer more High Definition channels.
Many
Associations are in the process of renegotiating its existing
bulk Comcast contract to provide each resident a solution. If
your Association has not renegotiated, the equipment is
available on a retail basis.
To
understand what you will need when the Analog to Digital
migration is completed, you first need to understand the
equipment Comcast offers and its retail pricing. While the
retail pricing may be different in the market where you live,
this will still provide an explanation of the equipment.
Comcast charges a fee for each receiver and an additional fee
for High Definition service (HD) and Digital Video Recording
service (DVR). Comcast offers four types of equipment with
different pricing:
•
Digital Transport Adapter (DTA) at a retail cost of $1.99 per
month
o
The DTA will provide access to Limited Basic, Expanded
Basic, and Digital Starter Service. You will not have access
to Music channels, Video on Demand, the interactive program
guide, or premium channels that you may subscribe to on a
retail basis on a TV that has only a DTA.
•
Digital Standard Receiver at a retail cost of $6.95 per month
o
The Digital Standard Receiver will provide access to all
channels in addition to access to Music channels, Video on
Demand, the interactive program guide, and all premium
channels for which you subscribe.
•
HD Digital Receiver with HD Service at a retail cost of:
o
$6.95 for the receiver and $7.95 for HD Service.
o
This will provide access to everything a Digital Standard
Receiver provides in addition to the ability to view
programs in High Definition, a better quality picture
available if you also own a High Definition TV.
•
HD-DVR Digital Receiver at a retail cost of:
o
$6.95 for the receiver and $15.95 for the High Definition
Recorder Service
This
will provide access to everything the HD Digital Receiver
provides, with the ability to record programs.
Each
subscriber will receive a letter from Comcast advising when
the Analog to Digital conversion will be completed. Until then
you can continue to enjoy the programming you presently
receive without the need for additional equipment.
***
(11-3-10)
QUESTION:
I just received a notice from our property manager that all
the directors of our condominium association must resign,
because under the changes to 718 that took place, a board
member may not serve for more than 2 years. She also said that
there is no defined time you must be off the board. Is she
correct?
ANSWER:
No. The statute says that staggered terms for board members
cannot be longer than two years. A board member may be elected
to subsequent terms of office as long as each term is no more
than two years. Check your governing documents and if they do
not address term limits, there are none because Florida Law
does not impose term limits for directors.
STAGGERED
TERMS FOR CONDOMINIUM DIRECTORS: The legislature amended
Florida Statute 718.112(2) (d), effective October 1, 2008,
regarding staggered terms for condominium directors. The
statute was amended to permit staggered terms for directors
for no more than 2-years upon approval of a majority of
the total voting interests. Staggered terms of three or more
years are no longer allowed. If a condominium association has
staggered 3-year terms for directors, the association must
definitely take a new vote to amend for a staggered 2-year
term structure.
The
question arises whether a condominium association with an
existing staggered 2- year term structure in its documents
must take a new vote to approve the staggered 2-year term
structure. The Division of Florida
Condominiums, Timeshares and Mobile Homes
("Division") has taken the following position on
this issue. If the condominium association documents already
provide for 2-year staggered terms, the Division recommends
that the association reaffirm this by a new vote with approval
from a majority of the voting interests in order to continue
using 2-year staggered terms. This is the case even if you can
prove that your 2-year staggered term provision was previously
adopted by a majority of the total voting interests of your
association.
We
recommend that this approval vote should be taken before the
association mails out the first notice of annual meeting and
election.
Staggered
terms of three or more years are no longer allowed. If your
association wants to adopt 2-year staggered terms as a new
provision or your current association documents provide for
staggered terms of 3 years or more, you must amend your
documents accordingly. If you currently have staggered terms
of three or more years, board members who are not up for
election because they are in mid-term of a 3-year term may
serve out the remainder of their term. If a board member’s
3-year term expires at the next (upcoming) election, either
the newly elected member is limited to a 1-year term or 2-year
staggered term depending on how your documents are amended and
approved by a majority of the voting interests. This process
will repeat itself in subsequent annual elections until all
board members are serving either 1-year term or 2-year
staggered terms.
***
(10-20-10)
QUESTION:
We have an owner who has taken steps to sell his parking space
apart from the unit. Our documents state: "Once the
parking space has been originally assigned by the Developer, a
conveyance of the condominium parcel without reference to the
appurtenant parking space shall, nevertheless, also convey the
parking space." We have not had any amendments to our
documents in this regard.
Reference
to 718.106, 718.107, and 718.110 seem to support that the
parking space cannot be sold separate from the unit.
Is
this correct?
ANSWER:
Yes, you are correct in that a parking space that is
appurtenant to a unit cannot be separated from that unit and
sold. It may be permissible under the governing documents for
a unit owner to permit another unit owner the "use"
of the space that is appurtenant to his unit for a fee,
without the actual transfer of ownership of that parking
space.
Pursuant
to Florida Statute 718.107 (2), the condominium parcel must be
transferred as a whole. Therefore, the common elements and
other appurtenances cannot be separated from the condominium
parcel. A parking space is an appurtenance to the parcel.
Since the the parking space was not "deeded"
separately from the unit, a unit owner cannot sell or transfer
their parking space.
There
may be an instance where a developer has additional spaces
available after each unit has been assigned its share and they
may offer the additional parking spaces to unit owners for
purchase. The additional parking spaces may or may not be
deeded independent of the the condominium parcel. Pursuant to
to requirements in the governing documents, a unit owner may
have the ability to transfer a parking space that is not an
appurtenance to the unit to another unit owner. If the unit
owner you refer to does not have a separate deed to the
parking space they are attempting to convey, then it cannot be
separated from the condominium parcel and any such attempt to
transfer the ownership of the parking space would not be
possible.
***
(10-6-10)
QUESTION:
I am renting in a condominium in which the owner of the unit
owes money to the association. The association told me
yesterday that they were not going to let any one of my
visitors in because the apartment owes money to them. Can they
do that? Can they deprive a visitor from going in because of
that? They are saying that the new law section 718.16(11) is
protecting them.
ANSWER:
Effective July 1, 2010, Chapter 718 of the Florida Statutes
was amended to reflect these changes to the law. As a result
of these revisions to the law, as of July 1, 2010, the
association may suspend the use rights for the common
elements, common facilities or any other association property
if a unit owner is delinquent for more than ninety days in the
payment of a monetary obligation due to the association,
except that association may not suspend the right to use
limited common elements intended to be used only by that unit,
common elements that must be used to access the unit, utility
services provided to the unit, parking spaces or elevators.
Additionally the association may legally suspend the owner’s
voting rights.
The
action suspending the rights of the owner (or tenant) must be
done at a properly noticed Board meeting. The Association must
provide fourteen (14) days written notice to suspend the use
rights for these common facilities and to suspend the voting
rights for any owner who is delinquent for more than ninety
days in the payment of a monetary obligation due to the
association.
The
legislature included a very important provision in the Statute
regarding collection of assessments. The Association also has
the authority to step into the shoes of the Landlord
(delinquent owner) and require the tenant to pay the rent to
the Association in an amount equal to the amount that is owed
to the association. If a tenant occupies a unit, and the
unit owner is delinquent in paying any monetary obligation due
the association, the association can demand and require that
the tenant pay the rent to the association to satisfy the
monetary obligations owed to the association.
The
association must make a written demand to the tenant. The
demand is continuing in nature. Upon demand, the tenant must
pay the monetary obligation owed the association until the
association releases the tenant or the tenant discontinues the
tenancy. The association must mail written notice to the unit
owner. The association must provide receipts to the tenant for
any payments received. A tenant who acts in good faith in
response to the association’s written demand is immune from
any claim by the unit owner. If a tenant prepaid rent, and the
tenant provides written evidence to the association of same,
the tenant shall receive a credit for the prepaid rent and
must make subsequent rental payments to the association. The
landlord unit owner is required to provide the tenant with a
credit against rents due for the amount of money the tenant
pays to the association. The association can evict a tenant if
the tenant fails to pay the required payment to the
association.
While
your association is refusing to provide access for your
visitors, you are not prevented from meeting them in the lobby
to provide access. Furthermore, the association has the
authority to require that you pay your rent to the
association. The association will apply your rent to the
delinquent amount owed by the owner. Once the delinquency is
cured you will be entitled access to all of the amenities you
are being restricted from using because of the delinquent
status of the owner.
***
(9-22-10)
QUESTION:
Five unit owners installed a lift that is attached to our
condominium. It was installed with the permission of the
board. We are wondering if this lift is now a common element
and do all of the unit owners have to reimburse the five unit
owners that paid for it and had it installed? Who is
responsible for maintenance of the lift?
ANSWER:
The lift is not a common element. While the board allowed the
unit owners to install the lift, it is still the property of
the five unit owners that contracted for it and paid to have
it installed. Anyone that wants to use the lift would have to
get permission from the unit owners that installed the lift.
The maintenance of the lift is the responsibility of the five
unit owners that own the lift. A recent arbitration decision
determined that the association could not require the unit
owners that own and installed the lift to provide the
association with evidence of general liability insurance in
case someone makes a claim for damages. For that reason, it
would be advisable for the association to make an inquiry of
its insurance provider as to their liability coverage in the
event someone made a claim against the association because of
something related to the lift.
***
(9-8-10)
QUESTION:
Recently, after attending an Insurance seminar, our Secretary
returned to tell us that according to one speaker, Florida has
issued new regulations that restricted information about condo
owners that could be distributed to all other owners. We have
traditionally published a directory which included names,
summer addresses, phone numbers, and Email addresses, as well
as local information. This Directory is extremely popular! Is
there any truth to this story? We have not had any complaints
and omit information if the owner makes such a request.
ANSWER:
Your Secretary is correct. The Statute previously stated that
information obtained in connection with approval of a sale,
lease or transfer of a unit is not accessible by owners. The
Statute also stated that medical records of owners are not
accessible.
However,
the Statute has been changed such that the following
additional records are not accessible by unit owners:
Personnel
records of association employees, including, but not limited
to, disciplinary, payroll, health, and insurance records;
E-mail addresses, telephone numbers, emergency contact
information, any addresses of a unit owner other than as
provided to fulfill the association’s notice requirements;
personal identifying information of any person, excluding the
person’s name, unit designation, mailing address and
property address; Any electronic security measures that are
used by the association to safeguard data, including
passwords; the software and operating system used by the
association regarding data. The statute now also states that
the association is not liable for an association member’s
misuse of information obtained from the official records.
[Effective
July 1, 2010; Applicable Statute FS 718.111(12); Bill
reference SB 1196].
The
statute was revised this year to limit the information that is
accessible to owners under a records request. As such, we
would not recommend publishing the restricted information
without the express written permission of each owner. We would
suggest that you provide the owners with a form to fill out
with the information that they would want published in the
directory. Have the owners sign them and provide them with a
new form every time your directory is published. Keep the most
recent form on file, but do not provide access to the forms in
the event a request for records is made by a unit owner. Since
each situation is different, we would suggest that before
publishing such a directory, you consult with your association
attorney.
***
(8-25-10)
QUESTION:
Can my condominium board require that I provide the
association with a key to my unit?
ANSWER:
Yes, you must provide a key to the association, even though
Chapters 718 and 719, Florida Statutes, do not specifically
address the issue of providing keys to the association. The
association has the irrevocable right of access to each unit
during reasonable hours when necessary for the maintenance,
repair, or replacement of any common elements or of any
portion of a unit to be maintained by the association or as
necessary to prevent damage to the common elements or to a
unit.
While
this may seem intrusive to a unit owner, who views this as
granting too much authority to the association, there are
practical reasons why there are numerous arbitration decisions
that support the Associations’ right to enter a unit.
Moreover, the arbitration decisions have consistently held
that there is not a valid reason for an owner to refuse to
provide the association with a key to a unit regardless of
whether it is a concern for valuables located in the unit or
even if there are guns in a unit.
In
the event of an emergency, valuable time may be lost gaining
access to a unit while trying to locate the owner, his
representative, or a locksmith. The issues that come to mind
involve both the safety and concerns of the occupant of the
unit as well as his neighbors. For example – if a pipe burst
and the association needed to enter the unit to mitigate the
potential water damage, valuable time could be lost waiting
for access. What if the occupant of the unit is in need of
assistance due to a slip and fall or a medical condition?
In
the event that you live in a condo or a co-op that requests a
key to your unit, we would suggest you comply, If you have
valuable items that you are concerned about protecting, it may
be prudent to put the items into a safety deposit box or a
locked closet within the unit.
***
(8-11-10)
QUESTION:
Why does it seem that the President
is making so many decisions without having a board meeting
first?
ANSWER:
Once elected by the membership, the board of directors is
charged with carrying out the duties and responsibilities of
the association. The authority of the board is comprehensive
and, in addition to Chapter 718 (which governs condominium
associations), it includes all of the powers and duties
enumerated in Chapter 617 (Florida Not For Profit Corporation
Act), as long as the powers are consistent with the provisions
of the governing documents of the association.
This
question often comes up, especially in the summer months,
because there may not be enough board members in residence for
a quorum of the board. Because there are not any meetings,
members of the association may think the President is
violating the law or the governing documents. That is not
correct because the President is the chief executive officer
of the Association with general powers and duties of
supervision and management of the Association, which usually
pertain to this office. Additionally the President must
perform all such duties as are properly required of him by the
Board of Directors. It is typical in almost every association
for the President to act in his best judgment. This is called
"managing by exception" in that a President has the
flexibility to manage and if he undertakes more authority than
the board deems prudent or appropriate, the board clearly
instructs the President as to what powers the President has.
If the Board of Directors ever decide the the President has
exceeded his authority in any area of the management of the
association, the board of directors always has the authority
to establish a clear policy as to what the President can and
cannot do. This rarely happens in association management
situations.
If
it seems that the President is exceeding his or her authority,
it is up to the board, not the members of the association, to
limit his or her authority.
***
(7-28-10)
QUESTION:
Can the Association prevent a person from parking in guest
parking spots if they live in the Association and owe money to
the Association?
ANSWER:
Florida Law recently changed to provide for the suspension of
the right to use common elements, common facilities, or other
Association property. The answer to this is, unless the
governing documents provide otherwise, an Association may not
suspend parking rights that are deeded to the unit that is
delinquent or that are deemed limited common elements. In
regards to suspending or monitoring owners parking in guest
parking, unless the Association has security that monitors the
guest parking spots, and / or it has towing privileges granted
to it in its governing documents, there is not an effective
way of enforcing such a suspension.
If
the Association has towing privileges it is IMPERATIVE that it
follow the letter of the law when authorizing the towing of a
vehicle. The Association must provide a signed "tow
slip" authorizing the towing of a specific vehicle that
has been prepared at the time in which the vehicle is cited
for the parking violation. Towing companies are in violation
of the law if they are found to be in the possession of signed
tow slips authorizing towing that are filled in by the tow
company with the information identifying a specific vehicle
after the Association requests the tow.
State
law holds a property manager financially responsible for any
illegal tow so that car owners are protected from what is
referred to as "predatory" towing. Predatory towing
is the term given to the removal of cars from parking lots by
tow companies that carry with them blank pre-signed tow slips
as they search for "illegally" parked cars by tow
truck drivers that are paid a commission. The Palm Beach
County towing regulations are specific in that a vehicle may
not be removed from private property without "the prior
express instructions of the property owner or manager."
The owner or manager is required to sign the tow slip in the
tow truck drivers presence or fax the driver a signed form
with an electronic time stamp. State law says illegal towing
can constitute a first-degree misdemeanor or third-degree
felony.
***
(7-14-10)
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.
***
(6-30-10)
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.
***
(6-16-10)
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].
***
(6-2-10)
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.
***
(
5-19-10)
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.
***
(5-5-10)
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.
***
(4-21-10)
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.
***
(4-7-10)
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.
***
(3-24-10)
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.
***
(3-10-10)
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.
***
(2-24-10)
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.
***
(2-10-10)
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.
***
(1-27-10)
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.
***
(1-13-10)
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.
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.
***
QUESTION:
Our community has several committees, including Finance and
ARC. We never know when they meet and as far as I can see
there are never any minutes taken. We should know what is
going on. Is this right?
ANSWER:
No, it is not right. Committees are not allowed to act in
secret. Under Florida law, any committee which acts in place
of the Board is required to keep a record of all its actions.
Those records form part of the official records of the
association and are available for inspection by all members of
the association. In addition, in many instances, committee
meetings are open to all members of the association and the
members are entitled to be notified of the meetings in the
same manner that they are notified of Board meetings.
In
the case of a homeowners’ association, this notice
requirement applies to any committee which makes a final
decision regarding the expenditure of association funds or any
committee vested with the power to approve or disapprove
architectural decisions regarding individual lots.
In
the case of a condominium association, this notice requirement
applies to all committees. The meetings of a committee which
does not take final action on behalf of the Board or make
recommendations regarding the association are not open to all
members, except if the association bylaws so state.
***
QUESTION:
We have a bulk cable contract and our board decided to get a
different cable provider. We are being told the previous
provider either will not or cannot provide service to our
building anymore for cable and Internet. As such, we are about
to lose our email addresses that were offered for free by that
provider. Is this legal?
ANSWER
This is extremely frustrating. Unfortunately, the previous
provider may not have enough customers on an individual basis
to continue to provide service to the building in the event
that it is no longer the bulk cable provider. If that is the
case, then you would no longer have access to your email
address that was given to you by that provider.
We
recommend that everyone set up a free email account, rather
than rely on one that is offered through your Internet
provider, especially if you use your email to run a business.
It can be a major disruption to be forced to give up an email
address and add to that the expense of reprinting business
cards, stationary, and advertising. Some of the more popular
free email address can be obtained from AOL located at
www.aol.com, gmail, located at www.google.com, and
yahoo, located at www.yahoo.com. Once you set up an
email on this type of a free account, notify all of your
contacts that you will no longer be using your previous
address. This will safeguard your ability to continue with the
same email address, regardless of who your purchase Internet
access from.
***
QUESTION:
Our condo association by-laws state "No dogs or pets
are allowed..."
However,
a new owner moved in and has a barking dog (which he is not
curbing). The noise disturbs neighbors. Our President said
there is nothing he can do to get rid of this owner. Do we
have any recourse?
Thank
you for your help
ANSWER:
Covenants that restrict or prevent pets are enforceable. This
restriction cannot be selectively enforced and the board
should proceed with the remedies that are granted under the
governing documents and Florida law to cause the owner to
remove the pet (although you may be tempted to "get rid
of the owner" you will have better luck removing the
pet).
Although
No Dogs means no dogs . . . the Unit owner may qualify or
attempt to qualify a pet by having it classified as needed as
a handicap accommodation by asking a doctor to write a letter.
Recent
federal court decisions have held that an Association has the
right to inquire of a doctor who states that a pet is needed
as an handicap accommodation and to ask the doctor to explain
the specific nature of the alleged handicap and why the
handicap requires the prospective resident to have the animal.
In this regard, the patient must establish through the doctor’s
statement that the patient is handicapped within the meaning
of the law in sufficient detail so that the Association is on
notice of the handicap. It should also explain why an
accommodation may be necessary to afford the handicapped
person equal opportunity to use and enjoy the dwelling and
also that such an accommodation is necessary.
The
doctor’s conclusions regarding the need for the animal must
be included and there must be specific facts regarding the
activities of daily life which may be limited, as defined
under the Florida and Federal Fair Housing Acts, and specific
facts indicating how the animal enables the resident to use
and enjoy the home or the common facilities of the
Association; how the animal alleviates or mitigates the
handicap; or that the animal in question has skills as a
service animal which would require an accommodation.
When
an accommodation of this type is requested, it is appropriate
for the Association to require a doctor’s sworn
certification that will furnish the necessary facts.
***
QUESTION:
I am the president of a condominium with an enormous amount of
units that are delinquent. We have sent these people to the
attorney who has filed liens on the unit. The law firm has
advanced all of the costs associated with filing, until these
matters are resolved. In the event we are unable to collect
from the unit owners, who is ultimately responsible for the
things like court costs that have been advanced?
ANSWER:
The association will be responsible for paying any costs that
have been advanced by the law firm in the event they are not
collected from the unit owner. Several years ago, before the
foreclosure debacle that is facing our entire country, lawyers
often advanced the costs and collected them when the matter
was resolved. This was never an issue in the past, as the
associations had few liens filed and had sufficient funds in
operating accounts to pay such fees in the event the costs
were not recovered from the unit owners.
In
today’s environment, many associations have large
percentages of their unit owners in various stages of
collection and they have a significant amount of money that
has been paid on their behalf by their attorney to advance the
costs associated with filing the lien with the Court. The
costs involved in filing a lien exceed $400 per unit and
multiplied by the number of units the association has been
forced to file a lien on – this could be a significant debt
to the association. Since this situation is not getting any
better, every association should take a look at the dollar
value of all fees that have been advanced on its behalf and
consider adding a line item to their budget to cover a
percentage of these fees in the event that they are not
recovered from the unit owner.
One
last note on this subject. If a unit owner is living in a unit
and is reaping the benefits of the things that are being
provided by the association, you would think he would do the
right thing and pay the association. Unfortunately – many
people assume that if they are not paying the mortgage, they
should also stop paying the association. This can complicate
things for many reasons. For example, if the unit owner is
able to successfully seek a loan modification from his bank
and reduce his mortgage payment, he will still owe the
association. Many association documents provide for penalties,
late fees, as well as attorney’s fees that are associated
with the collection of delinquent assessments. These costs can
often spiral out of control until the unit owner finds himself
in a hole so deep he may not be able to retain ownership of
his unit – even with a loan modification.
***
QUESTION:
I am on the Board at my Association and we have quite a few
unit owners who are delinquent in the payment of assessments
and I have recommended to the Board that we post the list of
delinquent owners on the community bulletin board. Is this
legal?
ANSWER:
Even though your question does not indicate whether you are on
the Board of a homeowners association or a condominium
association, the answer is the same for both types of
associations. Both Chapter 718, which governs condominium
associations, and Chapter 720, which governs homeowners
associations, specifically state that the official records of
the association include a periodic statement of account for
each member designating their name, the due date and amount of
assessments owing, the payments to the account and the balance
due. As you may know, the official records of the Association
are available for inspection and copying by any member of the
Association. In lieu of posting the list of delinquent unit
owners on a community bulletin board where it could be viewed
by non-members (tenants, guest of residents, vendors, etc.),
we recommend that the Association post notice that the list is
available for inspection and copying at the owners request or
that the Board bring extra copies to board meetings or
membership meetings to provide to the members who would like a
copy. In this way, if there is an error in the information,
you have not published the information or made it available to
the public for viewing which could give rise to a defamation
claim.
***
QUESTION:
We had a roofing company provide our association with a new
roof and now we come to find out that the roofer did not pay
one of his subcontractors, as we now find out that he has
placed a lien on the association property. We executed a
Notice of Commencement and were provided with a Release of
Lien with each payment. What should we do, as no one can sell
his or her units now with this lien on the property?
ANSWER:
Under the Florida Condominium Act, labor performed on or
materials furnished to the common elements are not the basis
for a lien on the common elements, but may be the basis for
the filing of a lien against all condominium parcels in the
proportions for which the individual owners are liable for
common expenses of the condominium. However, a lien can be
filed against association-owned property (not common elements)
for work done on that property.
In
addition to filing a notice of commencement in the county
clerk’s office, the association must post a certified copy
of the notice in front of the building where the work will be
done. The association must also file a copy of the notice of
commencement with the local authority issuing the building
permit. All of this puts any subcontractor on notice of the
identity of the association and the direct contractor. Any
subcontractor wishing to pursue his lien rights to secure
payment must then make himself known to the association. The
subcontractor has to serve a "notice to owner" form
on the association before the final payment has been made to
the direct contractor. This notifies the association that the
subcontractor can file a lien if he has not been paid, even if
the association has paid the contractor in full. If the
association has done everything it is supposed to with regard
to filing and posting the notice of commencement, the
subcontractor cannot record his claim of lien until after
serving the notice to owner. Once the association has received
the notice to owner, it must not pay the contractor any
partial or final payment without first getting a partial or
final release of lien from the subcontractor that gave the
association a notice to owner. Another option is to pay the
subcontractor and deduct the amount paid from what would
otherwise be due to the contractor. It is preferable, however,
to have the contractor first pay its subcontractors so that
there is no question about the amounts charged by the
subcontractor. The association should also request an
affidavit from the contractor listing all unpaid
subcontractors and the amount that each is owed.
In
your case, if you filed and posted a notice of commencement
and did not receive any notice from the subcontractor, the
non-receipt would be a complete defense to an attempted
enforcement of a lien by the subcontractor. If there is no
available defense to the lien, an individual owner may relieve
his condominium parcel of the lien by payment of the
proportionate amount attributable to his condominium parcel.
Upon payment, the lienor must release the lien of record for
that unit. All of this is a brief overview of a very complex
area of the law. An association should seek legal counsel
experienced in this area before beginning any construction or
maintenance project.
***
QUESTIONS:
Can our Association reject a potential tenant that I have for
a unit I own in a condominium?
ANSWER:
If the provision for screening is included in the Governing
Documents of the Association, the Association may
"reject" a potential tenant. The provisions of your
Association’s Declaration, Bylaws and Articles of
Incorporation provide important guidelines for the screening
process.
If
the Association’s Documents so provide, a unit owner’s
failure to be current on his assessment payments can give the
Association the authority to disapprove a potential lease.
A
prospective tenant’s criminal background is not reason for a
denial of an applicant unless his criminal record relates to
the types of conduct that will adversely affect other
residents in the community, or if, for example, the Documents
specify that the occupants must be of good character.
The
Association’s documents may provide that the potential
lessee’s financial situation is a factor to be considered,
and this would justify considering such information. In other
cases, unless the tenant’s financial situation poses a risk
to the Association, the person’s credit history is not
usually a criterion to reject a prospective tenant. This is
because of the credit history’s failure to have a direct
impact on the Association. A renter is not in a debtor /
creditor relationship with the Association. The tenant is in
such a relationship with the owner of the unit. It is the
owner and not the tenant who is liable to pay maintenance
assessments. In most situations, an Association is not in the
position to obtain a credit report on a prospective tenant
unless that tenant has consented, in writing, to such an
investigation. If a credit report is required, the consent
should be made part of the application process and the
application should provide for the consent by the applicant.
Where
potential tenants will be in clear violation of the
Association’s Documents, the Association has the authority
to reject the lease. For example, if trucks are prohibited and
a potential tenant states on the application form that the
tenant intends to park a truck in the community. This is
considered a "threshold" condition that allows the
Association to withhold approval of the lease.
If
it becomes clear to the Association in a personal interview
that the applicant is unwilling to respect the Association’s
rules and regulations, or if an applicant refuses to sign an
acknowledgment that the tenant will follow the rules, the
Association can disqualify the applicant.
Additionally,
the Association can reject an applicant under the
"threshold" requirements of the Documents for
occupancy including, for example:
1.
No pets where pets are prohibited;
2.
No commercial or other prohibited vehicles where such vehicles
are not allowed; and
3.
Too many persons will occupy the unit for the number of
bedrooms, in violation of local ordinance or the Documents.
The
Documents of some association provide for a Right of First
Refusal, which often requires the Association to provide an
alternate renter if the candidate presented is disallowed.
According to Florida case law, in some instances, where the
candidate does not qualify under the Documents, the
"threshold" condition, the Association can disallow
the proposed candidate without being required to provide an
alternate renter.
***
QUESTION:
We are a 55+ condo association. One of the units owned by
parents, is occupied solely by a 25ish son and his girlfriend.
Under the 80/20 formula, we are still considered 55+. The
couple have been residents for 4 years, without any problems.
By visual observation, it appears the young lady is pregnant.
Our
Condo documents do not allow children under 18 to reside for
more than 14 days at one time, with a total of 30 days
annually. Does FL condo law consider a pregnant woman to be a
violation, also?
ANSWER:
Many condo’s have age restrictions so that the senior
citizens can live in peace and harmony.
A
community claiming senior-adult status is required to register
with the Florida Commission of Human Relations stating that
the community is compliant with the with the requirements in
order to qualify for the status. This must be submitted in
writing, on association letterhead, signed by the president.
Anyone who knowingly submits fraudulent information can be
fined.
In
order to preserve a common scheme there are rules that a
condominium must follow. The 80 percent / 20 percent rule is
often misinterpreted. First, 80 percent of the units must have
one occupant that is over 55 years of age in order to allow an
occupant less than 55 to live in a unit. The only exception
would be a spouse who is less than 55 that continues to live
in a unit after the death of the spouse that qualified by
being over 55 and/or someone that inherits a unit.
In
the case of the owner’s son and the pregnant girlfriend,
neither can occupy the unit as their residence unless the
parent who is over 55 also resides there or they inherited the
unit. The pregnancy in and of itself would not prevent them
living there.
So
– even though the law is clear in that the baby can never
occupy the unit – the son and the girlfriend are also in
violation. The Association should inform this couple that they
need to relocate because they are in violation of the
requirements for maintaining a community that is age
restricted since they do not qualify under any of the the
exceptions.
***
NOTE:
The answers above are for general information only and are not
intended as legal advice to your particular association.
The individual situation of any association may differ based
on many factors. You are urged to contact your
association’s attorney regarding the specific applicability
to your association.
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