I Want Solar Panels on My Roof – Can HOA Stop Me?

Q: I want to install an energy saving device on my roof that will provide day lighting in my home by natural sunlight. The HOA Board in my community has indicated that this will be voted down if I proceed if I seek formal permission. I believe there is a law in Florida prohibiting the HOA Board from outright refusing this device. If the HOA Board does in fact refuse my request, what are my legal options?

 A: You are correct that Florida law does prohibit your HOA’s Board from outright denying permission to install this type of device. Even if the community covenants and restrictions give the HOA the right to deny exterior alterations and improvements, the HOA must allow this type of device under a special exception in the Florida law. The HOA can adopt a rule requiring the device to be installed in a particular location or at a particular angle that is aesthetically less offensive, but the device is allowed regardless of the HOA’s recorded covenants.

The same concept applies to standard dishes that allow homeowners to receive a television signal by satellite. The best course of action for the HOA is to be aware of these special laws for such alternative devices and adopt clear criteria regarding acceptable locations so that there is little guesswork required when owners seek permission from the HOA.

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Board Member’s Companies Bidding on Community Projects… Legal?

Q: One of the members of our HOA Board has various companies that are currently doing work or bidding on future projects in our community.   This seems like an obvious conflict of interest. We are not saying that he does incompetent work, but we believe he has access to other bids which allows him to get most of the jobs that he wants. He abstains from voting on these contracts when one of his companies is involved, but I believe this director is putting our community and our manager in a difficult position. What is the legality of this?

 A: A statute was adopted in Tallahassee that addresses this specific issue. Section 720.3033 of the Florida Statues now provides that if the HOA enters into a contract with or transacts with a Director or a company that a Director has a financial interest in, then the contract must be approved by 2/3 of the Directors present. The association must also comply the corporate statute regulating HOA’s, meaning that the Director’s relationship or interest should be disclosed to the other board members and the terms of the contract should be fair and in line with market rates.

Thereafter at the next regular or special member meeting, the contract or transaction must be disclosed to the members. The members, by motion approved by a majority of members present, can vote to cancel the contract or transaction. If the members cancel, the HOA is obligated to pay only for services received up to the point of cancellation and is not responsible for any termination fee, liquidated damage or other penalty that might be provided for in the contract.

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Are We Allowed To Cancel Our HOA Cable Contract?

Q: The developer of our HOA is getting ready to turn over control to the homeowners. One of the first things the homeowners would like to do is cancel the long-term bulk cable television contract. Can we do this?

A: The membership’s ability to cancel this long-term contract will depend on several factors and will probably be an uphill battle. First, Chapter 720 of the Florida Statutes governing HOA’s provides that any agreement entered into by the association before developer turnover that has a term greater than 10 years must be “fair and reasonable”. Assuming the contract is longer than 10 years, the HOA members would need to prove that the fees or other provisions of the contract are so unfair to the HOA that they should not be enforced in court. That is a very tough legal standard for the HOA to meet. To have a chance in court, the fees or other terms of bulk cable agreement would need to significantly deviate from market standards.

Second, the HOA statute allows for the cancellation of a contract for “communications services” by a majority vote of the members at the first annual or special meeting of the association that occurs after the contract was signed. It is likely that the bulk cable agreement was executed several years before developer turnover and that several annual meetings have taken place with no attempt by the members to cancel the contract. However, if the contract was signed within the past year, the members should act quickly and address this at the next HOA meeting.

At the end of the day, your HOA’s attorney needs to review the terms of the agreement and know when it was executed by the association. While it is not always possible to cancel these long-term communications agreements, there may be room for your attorney to negotiate some new terms with the provider.

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Why Can’t We Have a Private Party in The Clubhouse?

Q: Our HOA will not let us reserve the clubhouse and pool area for a private party. The property manager told us that we can have an event and invite guests, but that the event could not be closed off to the other members. Can the HOA do this? I am paying hefty quarterly dues, and I feel like there should be some way for us to have a private party in the clubhouse area from time to time.

A. In a private community with common amenities, the association owns, maintains and insures the common facilities. As a result, the homeowner’s association has the right to adopt reasonable rules and regulations with respect to the use of the amenities. By purchasing in this type of community, you are obligated to pay your share of the costs needed to operate the amenities, but you generally do not have a right to use those amenities in a private or exclusive manner.

Some communities do allow their residents to reserve the use of the clubhouse or meeting room on a limited basis and will require the resident to pay a reasonable deposit for use of the facility. However, the association is not obligated to have such a policy. As a member of the HOA, you are free to gather at the common areas and even invite friends and family members to join you, but you will generally not have the right to exclude residents from joining your party unless the association has a reasonable policy for temporarily reserving the facilities for private use. If you are not happy with the association’s policies on these types of issues, perhaps you should run for a spot on the Board at the next election.

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Should Association Members Vote on Cell Phone Towers Construction?

Q: The Board of our condominium association is discussing a deal with a cellular company for the installation of cell phone towers on the roof of the building. Apparently the tower lease could make good money for the association. However, we are concerned about our not-for-profit status and that the members should vote on this project. What laws should we be concerned about?

A. Many governing documents for condominiums and homeowners associations limit the Board’s authority to assess the members for “capital improvements.” In addition, Section 718.113(2)(a) of the Florida Statutes provides that a vote of 75% of the owners of a condominium is required to approve expenditures for material changes, alterations, or additions, unless the governing documents specifically state otherwise. On the other hand, the Board has an absolute duty to maintain, repair, and replace the common property owned by the association, and any provisions in governing documents that require ownership approval based on the amount of the expenditure are not valid if the expense is a maintenance, repair, or replacement expense. In this case, the installation of a cell phone tower is probably a “capital improvement” that requires membership approval. The association need not be concerned about its “not-for-profit” status provided that any revenues from the cell tower lease are retained by the association and used to offset operating expenses.   Many associations, such as semi-private golf clubs, operate facilities that are open to the public and generate revenue. Provided the revenues are not distributed to the members as dividends or profits, the association is generally free to pursue these type of projects provided the membership approval is obtained when appropriate.

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Best Place To Find New Vendors For Our Community?

Q. I am the newly elected president of my condo association, and the other board members want me to find some new vendors for our community and schedule interviews with our board. I don’t have a lot of time to devote to this project. In your opinion, what is the best way to find potential new vendors for my community?

A. An internet search will of course get you started, but probably the best way to learn about new vendors is to visit a trade expo. Trade expos operated by the Community Associations Institute (CAI) are some of the larger shows in Southwest Florida. They can feature over 100 exhibitors that provide various services to community associations, including property managers, accounting firms, law firms, banks, insurance companies, service companies and contractors. You will have the opportunity to visit with the exhibitors that interest you and hopefully find vendors that fill your community’s needs. These expos and free for all condo and HOA residents.

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What Can Be Done to Stop Illegal Association Meetings?

Q. When there is a meeting of board members consisting of a voting majority, a quorum, to discuss any type of association business other than private legal or employment issues, does the law require the notification of such a meeting along with a detailed agenda to the members of the association? If so, how can an association member prevent the board from having illegal meetings and discussing association business via email?

A. We receive a lot of questions about board meetings and the various ways that the law may be broken with respect to notice of the meetings and business conducted by e-mail. Thus, it may be helpful for our readers to have a plain English summary of the law in this area. First, an “official” meeting of the association’s board occurs any time a quorum of board members gather to conduct association business. This can be done at the clubhouse, at a private residence, on the golf course, or by email. The bylaws will define a quorum, but it is typically a majority of the directors on the board. Notice of all officials meetings of the board should be posted in a common area at least 48 hours in advance of the meeting, and this includes meetings of committees that carry out a portion of the board’s duties. Meetings that involve the approval of a special assessment or changes in the community rules require at least 14 days’ notice to each member of the association.   The meeting notice must contain an agenda, which must not be detailed, but should identify the items to be considered at the meeting. This notice requirement for meetings is often referred to as the “sunshine law” for Florida’s condo and homeowners associations. Members can also tape record or videotape these meetings and address the board on all agenda items. These requirements ensure that the business of the association will be done for the benefit of the members and not behind “closed doors”.

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Should Our HOA Amend It’s Documents to Combat Foreclosures?

Q: Our HOA is having more difficulty collecting from foreclosing banks and investors who purchase foreclosed properties. It used to be fairly standard to collect 12 months of unpaid assessments and a healthy portion of interest, late fees and legal fees, but some banks and foreclosure investors are now claiming that they owe nothing to the HOA pursuant to our documents. Can our documents really hurt us? I thought that the Florida law guaranteed us at least 12 months of assessments after a foreclosure? 

A: This is not as much of an issue for condominiums because the condo statute has imposed liability on foreclosing banks since 1992. For HOA’s, however, the law imposing liability on foreclosing banks is fairly new, and if the HOA’s documents were written before the change in the law then the documents could actually hurt the HOA on this issue depending on the language. Some documents simply provide that the bank or foreclosure investor owes whatever the statute provides, which currently is the most recent 12 months of assessments as you state (or 1% of the original mortgage debt, if that amount is less). Other HOA documents, however, provide that the new owner is not liable for any assessments or fees charged to the prior owner. This language can cost the HOA tens of thousands of dollars, and we are seeing banks and savvy investors do their homework and get aggressive even when the association attempts to collect the standard 12 months. If your HOA has documents that were written and recorded prior to 2007, it is imperative that the association’s attorney review the language regarding the liability of new owners following a foreclosure or deed in lieu of foreclosure. The attorney will probably find other provisions that should be updated and cleaned up, such as provisions on pets, leasing, guests, parking and other popular issues in your community.

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Took Control of HOA with No Property Manager. Suggestions?

Q: We have taken control of our large HOA from the developer. We have yet to hire a property manager. We have a stack of contracts with vendors and we do not know what to do with them or which vendors we can terminate. What is your suggestion on how we should handle this?

A: As you mention, a qualified property manager will be able to manage your contracts and relationships with vendors. In the interim, I would suggest that the new Board appoint a small committee to review each of the contracts with the association’s legal counsel. Obviously, the price charged by each vendor is an important consideration, but you also want to pay close attention to the renewal and termination provisions. If the contract automatically renews, you want to flag the renewal dates so that the association avoids getting stuck with a vendor you are not happy with. Further, if the association needs to terminate in the middle of an agreement, there could be an expensive termination fee. Also, the Board or committee should highlight which contracts and services are subjective to competitive bid. Certain types of contracts must go out for bid if it involves the association spending more than 10 percent of the association’s annual budget. The Board does not have to choose the lowest bid, and going with the cheapest option is not always the best for the community. Finally, the association should make sure that each vendor is licensed and contractually obligated to provide adequate insurance coverage. If the association hires a vendor that is not qualified or insured and performs in a negligent manner, the association could be responsible for any damage or injuries.

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Is it legal to run credit checks on prospective community tenants?

Q: In a recent column, attorney Mark Adamczyk answered a question about the legality of running credit checks on tenants who wish to rent in associations. Does your firm see many condominium documents that actually require the association’s Board of Directors to run a credit report on tenants?  Tenants are not responsible for paying the association fees and there is no credit relationship between the association and a tenant.  Further, if an association rejects a minority applicant because of his credit report, could this become a fair housing issue?  As an aside, very few board members have experience in reading credit reports.

A: We have not seen many condo or HOA documents that require the association to obtain a credit report for tenants, but as explained in our August 26 column, it is a common practice to review a tenant’s credit history as part of the leasing application. Again, the association’s Board must have sufficient authority in the community documents and rules in order to request credit history and other background checks. We have dealt with unit owners who have made the same argument you make. Their position is that the tenant’s financial condition is of no concern for the association and that only a criminal background check is possibly proper. We disagree somewhat. Many community associations we represent have found that both tenants and owners with a history of financial irresponsibility are less likely to follow the community rules. Further, if the owner defaults in the payment of assessments, the association does have the legal ability to garnish and collect rents directly from the tenant under Florida law. Thus, a reasonable argument can be made that credit history is an important factor for associations to consider. Certainly, if an association selectively reviews credit history based on the applicant’s race, religion or national origin, there will be a fair housing issue.

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Can Association Charge a Fee For Private Use of Club Room?

Q. Several unit owners in our condominium continue to argue about whether the association can charge a fee for the private use of our club room for parties. The room is first-class and it is expensive to clean and maintain. Can the association charge a fee if a member wants to use the room for a private function?

A. A condominium association in Florida is generally not free to charge a fee for the use of the common amenities. Each unit owner pays assessments and maintenance fees under the condo documents and therefore has the right to use the facilities in “common” with the other owners. The board is free, however, to pass a rule or regulation requiring owners to pay for proper cleaning of the facilities following a party or function and also for any damage that may be caused. If the association wants to start charging its owners a reasonable fee for the actual use or rental of the facility, the board should certainly consult with its legal counsel to ensure that such authority exists in the condo documents.

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Can We Stop Resident Decorating Common Areas With Tacky Flowers?

Q. My board allows a single resident to decorate common areas with cheap flowers and vases.  This same resident planted Agave cactus on a common cul-de-sac island. Most residents quietly complain to each other and do nothing. The flowers are, to say the least, are very tacky and the Agave Cactus is very sharp and dangerous. What can be done?

A. Unfortunately, the community documents probably do not give the homeowners the right to file a lawsuit because the board’s decorations committee has bad taste. The management and maintenance of the common areas falls squarely within the discretion of the board and its duly authorized committees. However, if the cactus actually presents a danger to the residents who might go into the common cul-de-sac island, it would be appropriate to bring that to the Board’s attention at the next open Board meeting.

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Can HOA Cover Legal Expenses While a Board Member is Being Sued?

Q. If the Board, or individual board members in our association are sued, we are told that the D&O insurance takes some time to kick in. The problem is that significant legal expenses could be incurred prior to the D&O coverage. Can the Association legally cover these expenses until the individual director(s) has insurance coverage?

A. Yes, it would likely be proper for the Association to temporarily cover legal expenses for a director, provided that the director was sued in his or her capacity as a board member and was otherwise acting in good faith. In most cases, the Association has the duty to indemnify or protect directors from personal liability related to their service on the board. Further, D&O insurance coverage should be provided by the association not only to cover the legal expense and damage caused by a lawsuit, but also to encourage homeowners to serve on the board without fear of personal liability or exposure to these lawsuits. If any directors are served with a lawsuit related to their service on the board, the summons should be immediately forwarded to the association’s legal counsel for timely response and the D&O insurance carrier should also be promptly notified.

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Should Neighborhood Watch & HOA Be Kept Separate?

Q: I am head of our neighborhood watch group. I need to understand the legal relationship between my group and the homeowners association. I was told by the association’s property manager that the neighborhood watch business had to be kept separate from the association board meetings. How then, do I approach the board to support our requests for better cameras and lighting? Can I hold my group’s meetings in the community center without causing liability issues for the board? 

A: The property manager correctly stated that the association should not have an official relationship with volunteer neighborhood watch groups. In previous columns, we discussed the George Zimmerman case which made national news. In that case, an HOA in Central Florida officially appointed Mr. Zimmerman to lead the neighborhood watch program, and the HOA was successfully sued by the family of Travon Martin. Because of the liability and training issues, we advise our condo and homeowners associations to avoid an official relationship with these volunteer groups. In your case, however, there is no reason that you cannot approach the Board with security issues and suggestions for improvements. As a member of the association, you have the right to address the Board at meetings. The Board can evaluate your issues and suggestions independently and take action if necessary to better serve the community.   Further, you should be able to hold your meetings in the community center, which is available for all members of the association on a non-exclusive basis. The Board would not incur additional liability simply because your volunteer group chooses to meet at the community center. At the end of the day, just remember that the HOA is not organized to provide security. It is organized to maintain the common areas and administer the community budget.   As a volunteer and concerned resident, you should voice your concerns and suggestions in the proper venue, but do not expect the HOA to take significant measures with security.


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Can We Fire Our Bad Landscaper Without Being Sued?

Q: Our association has a contract with a landscaping vendor that is becoming a problem. At first, we were happy with the service and we signed the contract presented to us. Now, we cannot terminate the vendor without a significant financial penalty and the vendor has threatened to sue our association for tens of thousands plus attorney’s fees if we terminate early. Do you think we have any legal recourse, or are we stuck with this vendor?

A: You may not have much legal recourse if you signed the vendor’s contract form, but you need to check with your association’s legal counsel as the contract might have a termination remedy for “cause” and allow you to cancel for poor performance. The ideal termination provision allows the Association the right to terminate the contract, without cause, by giving 30 days prior notice. Many vendors will push back when the association insists on the 30-day cancellation provision, but if they want the business and intend on doing a great job, many vendors will accept such a provision. The vendor’s form you signed probably provides that the “term” of the contract is for one year and the contract will automatically renew for another full year unless one of the parties provides written notice of cancelation at least 30, 60, or even 90 days prior to the anniversary date. But even when the association agrees to a minimum term of one year, the automatic renewal provision should always be stricken and replaced with a provision for a month-to-month renewal after the initial term. We strongly advise our clients against agreeing to a minimum term of more than one year for landscaping or similar service contracts. It is worth spending money for your attorney to briefly review these contracts before entering into contracts obligating your association. If this vendor does sue you and prevails, you might have to assess your members to pay the judgment against the association.

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Are Residents Entitled Full Access and Input to Association Financials?

Q. Our condo association recently had a budget meeting, and there were many accusations from the members regarding improper preparation of the budget and transparency in the process. Some members demanded more reports and updates on the association’s finances. Others were demanding an audit. What is my association required to do with respect to financial reports and audits?

A. These arguments are common, as many residents feel they should have a say in the association’s budget. In reality, however, the preparation of the budget is squarely a decision for the Board members who were elected by the residents to forecast the association’s expenses and prepare a budget. That being said, the homeowners are entitled to an annual financial report, and in some cases, an audit of the association’s spending. The level of financial reporting is governed by the association’s total annual revenues. For associations with $400,000 (or more) in annual revenues Florida law does require audited financial statements on an annual basis. The association can opt for a lower standard of financial reporting but only with a majority of the voting interests at a duly called meeting of the membership. This vote must take place before the end of the association’s fiscal year and is effective only for that year. The membership cannot waive the association’s required financial reporting for more than three (3) consecutive years.

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What is Association’s Liability with “Jack of All Trades” Vendors?

Q. Our condo association has a management company that uses the same vendors for all of their associations. Many of these vendors are handymen who are “jacks of all trades” (electrical, mold inspections, painting, plumbing, tile and such). The management company does not seem to require proper licenses or make sure they have insurance.   Consequently, our board thinks these things are unnecessary. What is the association’s liability if something goes wrong?

A. All too often, association board members do not take their duties seriously because they are volunteers and because the association is “not for profit”, and this mistake can be costly if proper steps are not taken to protect the homeowners’ interests. One of the most important duties of the association is the duty to keep the common areas in a state of good condition, and to repair and replace portions of the property when necessary.   While an unlicensed handyman may be able to handle some minor repairs, it does not require a law degree or a CAM license to conclude that most of the maintenance work in your community should be done by a licensed and insured vendor that has a valid agreement with the association. If there is an incident on association property due to faulty maintenance or repairs, the association could have significant liability if the responsible vendor was not qualified or licensed to do the work. Legally, the association should also ensure that a proper agreement or contract is secured for all maintenance and management services. These contracts should specify the services to be provided, the costs and frequency of the services and the number of personnel to be employed for providing these services. Of course, it would be our recommendation that these contracts also require proper licensure and proof of insurance before work is started. If you have questions about particular vendors and the risk they may pose to your association, you should encourage your board to check on this matter with legal counsel.

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How Long Does an Association Have to Address Rules Violations?

Q: I put a paver walk partially on common grounds five years ago for my handicapped wife to walk on. Some people in my community are now saying I need to move it. Is it too late for them to make this claim legally? There are many violations in our community that are never enforced.

A: Your issue raises a couple questions. First, how long does a community association have to enforce a rules violation, and what is the association’s ability to take legal action against you when it neglects to take action against other violations? Second, does your wife have the right to continue using the walkway under fair housing laws due to a handicap? As to the first question, we generally advise community associations to take relatively prompt and consistent action when it comes to rules enforcement. If the violation is open and known to all Board members and the association fails to take action for a year or more, it will be increasingly difficult for the association to prevail in any litigation to enforce the stale violation. Certainly if an open violation continues for five years or more without action by the association, you have a relatively strong chance of prevailing in court if the association tried to take action now.   Regarding the handicap issue, we are seeing more and more claims against community associations from those claiming exemptions to rules due to a disability or handicap. The most common claim involves service or emotional support animals, but we have handled other claims similar to yours. The general rule is that your wife is entitled to a reasonable accommodation from the association that would allow her an equal opportunity to use and enjoy her property. Assuming the lengthy delay by the association was not an issue, the association may require you to consider alternatives such as building the walkway in an area that is less intrusive or more aesthetically pleasing, but generally an association cannot strictly deny a reasonable request from a disabled or handicapped resident, particularly if the request will have a minimal impact on other residents.

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Tenant Fighting Bank Over Robo-Signing – How Can We Get Our Association Fees?

Q. We have an owner who has not paid association fees for almost 3 years. The bank that financed the unit was apparently involved in “robo signing” and the delinquent owner has successfully fought them every step of the way. Does the association have any recourse against the bank, and if so, do you think it would be worth pursuing?

A. This “strategy” is used more often than you think. In just about every community we represent that has a collections issue, there is at least one owner who aggressively fights the bank with a lawyer in an effort to stall and keep the home. It is cheaper to pay a lawyer $500.00 per month than to pay the mortgage.   In almost every one of these cases, the unit owner also stops paying the association on the assumption that the association is powerless and at the mercy of the bank. This is not necessarily true. It is important to remember that there is no strong legal defense for an owner’s failure to pay the condo or homeowner’s association. The association does not have “robo signing” or other issues faced by the lending industry. If the owner cannot show a judge that he paid the association for his share of the common expenses, the association will prevail in any legal action against the owner and will be entitled to recover its legal expenses incurred in the process.   Thus, we believe your focus should not be on the bank’s failures, but rather the owner’s failure to pay and the options available to correct the problem. Once your association puts the appropriate pressure on this owner who is going through great strides to fight the bank, I think you will be pleasantly surprised with the results.

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Association Ignores its Own Rules Regarding Pets. Can We Change That?

Q. Our condominium association has rules and restrictions regarding pets, but prior boards have ignored the restrictions, so some owners are keeping pets that violate the rules. I have just been elected to the board, and the new board would like to enforce the pet rules. Can we do that?

A. Enforcement could now be an issue for your community due to passage of time and lack of enforcement by prior boards.   The fact that there is a new board that wants to enforce the documents does not, in itself, fix the problem of prior boards being lax. Under Florida law, if an association fails to enforce valid restrictions, its generally loses the power to enforce because a unit owner or tenant can defend himself by asserting “waiver” and/or “selective enforcement”. However, it is not too late to fix the problem going forward. A properly drafted resolution mailed to all owners can revive a restriction that has been inconsistently or haphazardly enforced in the past, but only prospectively or going forward. Existing violations may need to be “grandfathered” because of fairness, and I would certainly recommend that your board consult with its legal counsel to discuss the need for such a resolution.

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What Happens to Surplus Cash after “Special Assessment”?

Q. When a special assessment is collected for a specific purpose and then that purpose is no longer needed, what happens to the money? Our condo association passed a special assessment because our reserves were inadequate, and I believe there will be money left over after the projects are done.

A. The term “special assessment” is not the most popular term if you live in a community with an association.  A special assessment may be necessary to pay for unbudgeted expenses, and a special assessment may also be approved by the membership for major capital improvements. The funds collected from a special assessment must be used for the purpose(s) set forth in the notice to the owners. Any excess funds are considered common surplus and may, at the discretion of the board of directors, either be returned to the unit owners or applied as a credit toward future assessments. We recommend in most cases that the common surplus be credited toward future assessments, which may allow the association to reduce quarterly maintenance fees.

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Am I Restricted To Talking About ONLY Agenda Items in Meetings?

Q: I was recently told at a Board meeting in my homeowners association that I was not allowed to address the Board unless my comments were aimed at an agenda item. I was under the belief that I could address the Board for up to 3 minutes on any subject related to our community. Can you clarify my rights here?

A: I am happy you asked this question because this is another area of confusion, and we see many abuses on both sides of the fence. Under Robert’s Rules of Order members of an assembly have the right to speak without being recognized by the Chair and ask any question by stating Point of Order or Point of Information. However, this is not the case at community association Board meetings. Pursuant to Sections 718.112(2)(c), and 720.303 Florida Statutes, members have the right to attend meetings of the Board and to speak about all items on the agenda. The Board may, however, adopt reasonable rules governing the frequency, duration, and manner of unit owner statements. For instance, the Board can require owners to “sign up” in advance of the meeting if they wish to speak. As you point out, the Board can also limit the speaker’s time to 3 minutes which is considered reasonable. So, if the item is not on the agenda, the member does not have the automatic right to speak on the topic unless the meeting Chair allows it.

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Faulty Condo Sprinkler Damaged My Belongings. Who Should Pay?

Q. A fire sprinkler went off in my condo building causing $25,000 in damage to my kitchen and other personal items. Although the Condo Association admits the sprinkler is its responsibility, the Board is claiming that the association was not negligent or at fault and is denying any liability for my damages. Since the sprinkler did not perform normally, I think the association, the management company or perhaps the manufacturer should take the blame. Who is right here?

A. We have recently addressed many questions regarding insurance and repair obligations in condominium associations. This is an interesting twist on that issue, but our advice remains the same as prior columns. The association is responsible for insuring and repairing the condominium buildings as originally built, which includes the common areas and the drywall inside your condominium unit. If there is a leak or other casualty that causes damage to your kitchen fixtures and other personal property, Florida law is clear that the damage is your responsibility and you have the obligation to obtain insurance for that type of damage. This does not mean that you or your insurance company cannot pursue any negligent party that may be responsible for the faulty fire sprinkler, but this does not sound like a situation where the association is obligated to pay for the damage inside your unit.

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Any Legal Issues with Part-Time “On Site” Manager or Even “Self Management”?

Q: Our Board is starting to review next year’s budget and issue of management is being debated. The Board would like to cut the costs and fees associated with the professional management and is considering a part-time “on site” manager or even “self management”. Do you see any legal issues involved with this decision?

A: This is more of a business decision, and not legal, but there a few things to consider. We are in favor of hiring a professional management company because most associations significantly benefit from the services, technology and infrastructure these companies can provide. The right management company will provide the Board members with the resources, vendors and information they need to make the best decisions for its members. However, the hiring of a professional management firm is not legally “required” and may not be the best fit for some associations. Many associations are “self managed”, which can mean several things. Many associations, including HOA’s and condominiums, hire a full-time licensed manager and other staff members who are association employees. Your association is the sole focus of these employees, which can be great thing if this overhead is in the budget. Other “self managed” associations are literally managed by the Board members themselves. This is the least preferred alternative and often results in greater personal exposure for the Board members. Managing a community association is a full-time job and should be done by a licensed professional if at all possible. You will need certain expertise that a licensed manager can provide. Before the Board considers taking on this responsibility without a professional manager, the Board should consider making sacrifices in other portions of the budget and make a good faith effort to raise funds to hire a qualified manager.

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What Are The Association’s Options for Hurricane Protection?

Q. Our condominium association is faced with a dilemma regarding hurricane shutters. In your experience, is it better to have the association take responsibility for installing and maintaining shutters, or should this responsibility be put on the individual units owners? 

A. This is a case-by-case decision for each association. The residents in your community should have clarity with respect to hurricane preparation and protection. First, the board should have its legal counsel review the condominium documents to determine if the responsibility for hurricane shutters lies with the association or the individual unit owners. If the shutters are the responsibility of association pursuant to the documents, the association should develop a plan for the installation of the shutters in severe weather and is also responsible for the maintenance, repair and replacement of the shutters. Further, in this scenario the association can go ahead and install hurricane shutters, impact glass or other code-compliant windows without a vote of the owners, and the cost of the installation will be a common expense. On the other hand, if the individual unit owners are responsible for hurricane protection under the documents, the association would need approval from a majority of the owners in order to install shutters or other protection. In a community with a large number of multi-story buildings, it is probably better for the association to accept responsibility and seek a vote for installation of uniform shutters for protection of the buildings and its residents. With respect to installation by unit owners, the Board must adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include color, style, and other factors deemed relevant by the Board. The association cannot refuse installation by a unit owner that conforms to these specifications adopted by the Board. In short, the better alternative depends on a number of factors, some of which are legal and some of which are logistical. The Board should consult with its property manager and attorney if there is confusion in this area.

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Who is Responsible for Drywall Repairs… Association or Owner?

Q: I have been told that Florida law makes the condo association responsible for drywall repairs, but how can our Board possibly pay for repairs when the damage was caused by the unit owner’s carelessness. My understanding in this case is that it is the damaged unit owner’s problem. Can you provide some clarity for us?

A: One of the most common questions about the law on water leaks and drywall repairs is: Who insures what? The association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications”. In a nutshell, this means that the association’s insurance covers all drywall in the unit for losses caused by a covered hazard or casualty. What do we mean by “covered hazard or casualty”? The condo association’s insurance only covers losses such as fire, water intrusion, windstorm and other perils identified in the policy. Not all events that might cause damage are covered by hazard insurance. For example, the breakdown of an air conditioning unit caused by age or normal wear and tear is not a covered hazard under the association’s insurance.   Thus, one of the first questions a Board member should answer when presented with a damage claim, regardless of fault, is whether the damage was caused by an insurable event. If not, the Board needs to have its legal counsel review the condominium documents and determine which party is responsible for repairing the damage. Assuming that the cause of the damage is covered by the association’s insurance, the association pays for the repairs and the insurance deductible is a common expense.  However, if the cause of the damage can be attributed to the owner’s or another person’s negligence, the association may seek to recover the cost of the repair from the guilty party. Further, the association is not obligated to pay for reconstruction or repairs of casualty losses are not timely reported by the owner.  Your Board should explore these complex issues further with its legal counsel.

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Am I Forbidden from Hanging a Clothesline on My Balcony?

Q. Recently a dispute arose in our community regarding clotheslines and drying clothes outside the unit, such as on the balcony. We have rules about this in our documents, but someone on the Board told me that there is a law granting certain rights regarding clotheslines because of energy savings. Can you provide some clarity on this?

A. There is such a law that the association needs to consider before enforcing these rules. Florida is one of the few states that has enacted legislation dealing with clotheslines and other renewable energy resources. Section 163.04(2), Florida Statutes provides that “[a] deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.” Before attempting to enforce any rules in your documents with respect to clotheslines, you should review this matter with your legal counsel and design a strategy that protects both the association and the property owner’s legal rights.

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What Contracts Can the Association Approve Without a Vote?

Q. I am upset because my homeowners association fired the management company and hired a new company with only a vote of the Board of Directors. This is an expensive contract with a large management company. I believe the members have a right to approve these contracts, or at least have the right to cancel them at the next annual meeting. Am I correct here?

A. There is a provision in the Florida homeowners association statute regarding the members’ right to cancel a contract, but that provision applies only to bulk communications or bulk cable television contracts.  The Board of Directors generally has the authority on its own to approve contracts for operation of the HOA, including management contracts.  In fact, a contract for a management company does not even need to go out for bid. One exception is when the association is considering a substantial addition or change to the common areas, such as the clubhouse. Unless the HOA documents specifically authorize the Board to spend association funds on a large capital project, the Board will likely need a vote of the membership to proceed.

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Can We Fine Homeowners or Cancel Leases for Unruly Kids?

Q. There are many unruly children in our neighborhood, and many of the parents do not seem to care. We have spent thousands on vandalism, and many of the children continue to trespass into the neighboring private community. Most of the children live in rented homes. Our HOA Board realizes we cannot refuse a lease because of children but has finally arrived at the conclusion that any time a child breaks the HOA’s rules, if they are a renter we would like to cancel their lease with appropriate notice or not renew it. If the children live with homeowners, our Board imposes fines against the owner. We get reports from certain residents regarding the violations and do our best to document, but we cannot always get pictures. What specifically can we do to control this situation?   Can we cancel a lease because of rules violations? Are there other options available to us?

A. The legal options in this scenario depend largely on the strength of your governing documents. If your community documents have “teeth” with respect to rules violations, chances are you have the ability to impose fines against owners and tenants in addition to the right to evict unruly tenants. Adults residing in your community are responsible for the actions of their children, so your association does have the right to take action if the children are violating the community rules. An effective enforcement process starts with documenting the violation and sending proper written notice to the owner or tenant. If the violation is not cured after reasonable written notice from the association or its manager, it may be possible for the association’s legal counsel to start the eviction process for a tenant if there is supporting language in the community documents. Well-drafted documents include language allowing the association to stand in the shoes of the unit owner and evict an unruly tenant and recover legal fees in the process. Another effective strategy for managing unruly tenants is to require an additional security deposit payable to the association. This deposit can be used to pay for any damage caused to common areas or pay fines imposed for violations. Rule-abiding tenants will likely pay the deposit, but careless tenants will likely balk at the deposit and rent somewhere else. Finally, your HOA always has the right to demand that owners and/or tenants participate in mandatory mediation in connection with any rules violations. This process is required by statute for many disputes in your community and forces the unruly owner or tenant to spend money on a mediator and lawyer in the mediation process. If the owner or tenant refuses mediation, the association can file a lawsuit to compel compliance and recover legal fees incurred in the process. You should have your legal counsel review the enforcement portions of your documents and determine whether there is sufficient strength and whether an amendment may be necessary to provide the options discussed above.

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We Don’t Believe This Overweight Dog is a Service Animal. What Can We Do?

Q: Our condo documents have a weight limit for pets. Recently, a tenant moved in with a large dog that clearly exceeds the weight limit. The tenant claims that the dog is a service animal and not a pet. The tenant has no obvious handicap and many residents are concerned that the tenant is taking advantage of discrimination laws. Should the association do something here? 

A: This is a popular topic in community associations, and because of the sensitive nature of the issue there can be much confusion. In a perfect world, the tenant would have asked the association for a waiver of the weight limit before moving into the community. The association could have asked for the proper information to evaluate the tenant’s medical need for this animal and made a decision in accordance with fair housing laws. However, when the animal is already in the community raising eyebrows, it puts the association in a tough situation. We do not recommend demanding the immediate removal of the animal. Rather, the association should send the tenant and the unit owner a notice regarding the weight limit and request documentation showing that the animal is medically necessary. The association’s legal counsel can provide guidance on what medical information can be requested.

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Can Association President Have Pool & Spa Camera Feed in His Home?

Q. Our association has security cameras at the community pool and spa, but we recently learned that the association president has the ability to view the feeds from these cameras from his home. This makes many members uncomfortable. Is this legal?

A. There a few issues to consider here, and we really cannot give you a clear answer without reviewing your association documents and seeing the cameras themselves. First, security cameras should not be installed in areas where homeowners and their tenants and guests have a reasonable expectation of privacy, such as locker rooms, bathrooms, or areas where the camera may record the interior portions of a homeowner’s unit. The most popular locations to install surveillance cameras are at entry gates, recreational facilities and other common areas as a means to deter trespassing, vandalism, property damage, and rules violations. Second, did your association even have the legal right to install the cameras to begin with? If you are living in a condominium, the association may have been required to obtain approval from 75 percent of the unit owners before installing the cameras. In a homeowners association, the board should proper authority in the community documents before spending association funds to install security cameras. Third, who should have access to the video feed? If the association employed a security company and those working for that company have the ability to monitor the video feed for security purposes, one could argue that the president of the association should also have access to the video feed. After all, the president and the other board members are charged with the duty of operating and maintaining the common areas. Thus, if the cameras are installed in a conspicuous place at the pool and spa area such that there is no expectation of privacy for those using the facilities, I do not believe that the association is violating Florida law simply by allowing the president to monitor the video feed for proper purposes. You should still check with legal counsel to ensure that the association took the appropriate legal steps to purchase and install the cameras.

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Separated From Husband, Can I Still Use Community Amenities?

Q. I am separated from my husband and I am no longer living in my home, but my name is still on the title and the mortgage. I would like to still use the community amenities, but I am no longer paying the association dues. Do I still have the right to enter the community and use the facilities such as the clubhouse, fitness center and pool?

A. You probably still have the right to use the community amenities, provided your husband is continuing to pay the association dues. First, you need to review your community documents with respect to membership in the association. You are probably a member of the association if your name remains on the title to the property. Members have the right to use association facilities if they are current with payment of association fees. If the member becomes delinquent for more than 90 days, the association has the right to suspend your use of the amenities until you pay all amounts owed to the association. If payment of association fees is not a factor, the association cannot suspend a member’s right to enter the community and use the facilities simply because you have moved out. Absent a divorce agreement to the contrary, your husband cannot block your right of access either. You should confirm this issue with your attorney, but based on your question I believe you will have right to continue using the community amenities until your name is removed from the property either by refinance or sale of the home.

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Best Way To Access “Abandoned” Units To Check For Post Storm Water Damage?

Q: We recently conducted the annual fire sprinkler inspection for our condo association. During this process we were not able to gain entry to several units due to keys not working or no keys on file. In light of the recent storm and reports of water intrusion, our board president wanted our CAM to check all the units that appear vacant for possible water intrusion or signs of any damage to the units. What is the best and safest way to access these “abandoned” units to make sure there is not significant mold or water damage? 

A: Even it may not be stated in your condo documents, the association does have the right under Chapter 718, Florida Statutes, to inspect possible damage to common elements and to make emergency repairs.  The entry and inspection must be during “reasonable hours”.   For any units that are known to be vacant and abandoned, I would not be concerned with “posting” a notice.  For any units that are occupied and which you do not have a key or the owner is refusing access, the owner will be responsible for any damage that occurs for refusing to provide access.  If you have to change any of the locks to gain access, I would send a short notice to the owners’ last known address informing them that the association is keeping the new key to the unit at the association’s office, which was made necessary by their failure to provide emergency access.

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Good Idea for a Condo or HOA to Accept Payment Plans?

Q. Recently, our association started more aggressive collections efforts and we received several requests from owners for payment plans. Our board is hesitant to agree to payment plans because of the uncertainty of payment and is also unsure what leverage the association has to ensure payment. In your experience, is it a good idea for a condo or homeowners association to accept payment plans for delinquencies?

A. The answer to your question changes with the economy and also depends on other circumstances that are special to your community. When the economy was better, the association had little motivation to accept payment plans because the association’s lien truly gave the association some leverage. Further, if there is equity in the delinquent property, the association should almost never accept a payment plan because a lien foreclosure against that property will probably get the association paid in full. In the vast majority of other cases, however, the association’s lien is often behind a first mortgage lien that substantially exceeds the property value. On these “under water” properties, a payment plan should be considered in select cases with the assistance of legal counsel. We generally do not advise our clients to accept a payment plan unless the delinquent owner agrees to: a) pay a significant portion of the balance as a down payment; b) pay the balance of the arrearage owed in six to twelve months; and c) pay future maintenance fees in a timely fashion. Also, to gain additional leverage, the association should consider accelerating the maintenance fees for the rest of the year before any payment plan for the arrearage is considered.

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Can A Board Member Continually Sit On The Fence?

Q. Our board meetings have recently become contentious when it comes time to vote on approving leases and sales. One of the board members routinely disagrees with the other board members and has now formed the habit of “abstaining” from the vote, claiming she does not want any liability. Can this board member refuse to vote?

A. It is a common misconception that directors can “abstain” from voting, but it is only proper in limited instances. Robert’s Rules of Order provides that a member who does not have an opinion on an issue may abstain from voting on the issue. However, in community associations, a Board Member may only abstain from voting if he or she has a legitimate conflict of interest directly related to the issue or subject being considered. An example of a conflict of interest, which would allow a Director to abstain, would be if the Board was considering hiring the Director’s spouse to be the manager of the association. Barring a direct conflict of interest, it is improper for a Director to abstain. If this Board member continues this habit of refusing to vote, the members should consider pursuing a recall (removal) of that Board member.

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Lien is Filed for Nonpayment of Maintenance – When Can We Foreclose?

Q: Once a lien is filed for nonpayment of maintenance, how long until the association can foreclose? Does foreclosing take a vote of the board? Can the unit be sold or must it be rented? One of our board members is a realtor and expects to be the listing agent on rental or sale and collect a commission. Isn’t this a conflict?

A: Unless this is your first delinquency, which is doubtful, your association should have been previously counseled on these questions. Whether your board has been lax or has not been advised by experienced counsel, it appears that your association needs a change in direction. If you are a condominium association, your association can foreclose on its lien in as little as 60 days. The period is extended to 90 days for homeowners associations. The decision to foreclose does require approval from the board. Single board members should not be making these decisions unless they have the proper advance approval from the board to direct legal counsel. If the association does foreclose and obtains title to the unit, the association has several options. The unit can be rented, which makes sense in a lot of cases if the unit is in reasonable condition. The unit typically cannot be sold if it remains subject to a first mortgage, but experienced legal counsel can advise you on how to apply pressure on the bank and obtain a great result for the association.

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How Should Our Association Fund Hurricane Damage?

Q: Our Board is concerned about the cost of clean-up and repairs after a hurricane. We do not have a tremendous buffer in our operating accounts for those expenses. Passing a special assessment after the damage does not seem like a great option because of the time involved and the uncertainty of collection. Do you have any suggestions for us? 

A: We have seen several communities take out a line of credit with a lending institution to address this financial need. You are correct on the special assessment. Not only will that be an unpopular decision in the community, but it will take some time to raise the funds with an assessment and there will certainly be some owners who will not pay it. The association has the right and duty to manage, maintain and operate the common areas, and a loan is a proper way to meet this obligation under Florida law. Many banks will consider making a loan or extending a line of credit to your association. The loan is primarily secured and collateralized by the assessments paid by your owners, and thus it is a relatively safe loan for the lender. Obviously it is better for your association to stay “debt free”, but it may not be a bad idea to have a line of credit available in the event cash is needed to perform emergency repairs or maintenance.

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When is There Good Cause to Deny a Sale?

Q. Our Board has disapproved sales transactions in the past, and the community documents allow for this with “good cause”, if the Board first receives a written opinion from legal counsel that good cause exists. We are not extremely confident in the opinions from our legal counsel in this area, and we would appreciate your general opinion on when there is good cause to deny a sale…

A. We can provide some guidance on this, but our first suggestion is to amend your documents to provide more clarity on what exactly constitutes “good cause”. We see many documents, particularly in older associations, that are too vague on this subject and it can get the association in trouble if the board makes inconsistent decisions. Experienced legal counsel can provide some language for a document amendment that specifically states the grounds on which a sale or lease can be denied. Typical grounds for “good cause” that we have seen and tested include: 1) the applicant has been convicted of a felony involving violence or theft; 2) the applicant has been evicted from other communities for violations of the community rules; 3) the applicant cannot comply with the community rules based on the application itself (i.e. the applicant has 3 dogs and the community rules allow only 1 dog); 4) the owner of the property is delinquent in the payment of maintenance fees or other charges at the time of application. A current “hot topic” is whether a board can deny an applicant based on credit score or financial history. This can be done but there needs to be specific language in the documents and the board needs to be reasonable and consistent in its review. “Good cause” will certainly not exist if the board wishes to deny an applicant based on race, religion or national origin, which is a violation of federal and state law.

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Sharply Refused Exercise Equipment in New Clubhouse. Is this Fair?

Q: My wife and I recently purchased a home from a resident in a new development. The clubhouse construction was delayed due to the economic downturn of the past few years, but is now under construction and will be finished by the end of the year. I recently suggested some equipment be included in the exercise facility but was told we will not have it. Apparently there was a meeting several months before we purchased that spelled out the changes. I was quite upset and sent a complaint to our management company. I was contacted by an employee of the builder who informed me that he was the President of our homeowners association. Does he have any obligation to the homeowners? Are meetings required? Do we have recourse for decisions that he makes?

A: The board members appointed by the developer do have a fiduciary obligation to act in the best interests of the homeowners. This creates a potential conflict of interest since the president in this case is also an employee of the developer, but it is absolutely the norm for developer employees to serve on the board until turnover. In most cases, the turnover process is smooth because these developer-appointed directors have been through many turnovers and are familiar with the developer’s duties under Florida law. In your case, the decision not to install certain exercise equipment is not typically a decision that is made by the homeowners. The board members make those decisions based on budget restrictions and what they believe is in your best financial interests as a homeowner. That being said, board decisions should be made at a properly noticed meeting. You do have recourse against board members who violate their duties, but you do not likely have “extra” recourse against this president merely because he is also a developer employee. My advice on this issue is to be patient until turnover and then the homeowners will have the ability to manage the association’s money and property.

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Does Condo Board Have To Pay For Owner’s Carelessness?

Q: I have been told that Florida law makes the condo association responsible for drywall repairs, but how can our Board possibly pay for repairs when the damage was caused by the unit owner’s carelessness. My understanding in this case is that it is the damaged unit owner’s problem. Can you provide some clarity for us?

 A: One of the most common questions about the law on water leaks and drywall repairs is: Who insures what?  The association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications”.  In a nutshell, this means that the association’s insurance covers all drywall in the unit for losses caused by a covered hazard or casualty.  What do we mean by “covered hazard or casualty”? The condo association’s insurance only covers losses such as fire, water intrusion, windstorm and other perils identified in the policy. Not all events that might cause damage are covered by hazard insurance. For example, the breakdown of an air conditioning unit caused by age or normal wear and tear is not a covered hazard under the association’s insurance. Thus, one of the first questions a Board member should answer when presented with a damage claim, regardless of fault, is whether the damage was caused by an insurable event.  If not, the Board needs to have its legal counsel review the condominium documents and determine which party is responsible for repairing the damage.  Assuming that the cause of the damage is covered by the association’s insurance, the association pays for the repairs and the insurance deductible is a common expense.  However, if the cause of the damage can be attributed to the owner’s or another person’s negligence, the association may seek to recover the cost of the repair from the guilty party. Further, the association is not obligated to pay for reconstruction or repairs of casualty losses are not timely reported by the owner.  Your Board should explore these complex issues further with its legal counsel.

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Condo Board Say I May Not Install an Alarm System. Can the Association Stop Me?

Q. Our condo building is supposed to be secured and locked form dusk to dawn. My neighbors bypass the system by leaving entry doors open, sticking cardboard in fire doors, and other measures that allow others to sneak in. Complaints to the condo association are ignored. I contacted an alarm company so I could feel safe inside my home. I have been informed by the condo board that I may not install an alarm system. Can the association stop me? After their reaction, I would also like to install a camera so that I can view the hallway prior to exiting my unit. Is that allowable?

A. There are a couple of issues to address in your question. First, does the association have a role in securing the building to protect its residents? Second, can the association regulate what you do in your unit and outside your unit with respect to your own personal safety? On the first question, the primary role of the association is to manage and maintain the condominium building. This includes keeping the building in a state of good condition, and to repair portions of the building when necessary. The association is not, however, a security company.   The association might employ a company that controls access to the community, but the association is not responsible for ensuring the absolute safety of its residents. On the other hand, if an entry door is supposed to lock but does not do so because of lack of maintenance, the association could be responsible due to negligence. On the second question, the condominium association probably does not have the authority in your condo documents to stop you from having an alarm system in your unit. The association can, however, refuse to allow the installation of private cameras in the hallway which is probably a common area. One alternative is for the association to install cameras at the entry doors in such a manner so that unauthorized entries are recorded. You send your concerns to the association’s board by certified mail, and the board members are then obligated to respond to you by law.

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Can Relatives Stay For a Couple of Weeks in My Condo?

Q. My condo association has restrictions on rentals and requires leases to be at least for 30 days. My relatives want to come down this summer and use my condo for a couple weeks while I am away. Will this be allowed given the 30-day rule for occupancy? 

A. I would need to see the language in your condo documents to give you a better response, but typically restrictions on rentals will not prohibit you from allowing guests to temporarily stay in your unit. Unfortunately, many associations we represent deal with abuses in the rental process. Many owners will attempt to circumvent the rental application process by telling the association that the occupant is merely a “guest”. However, a true “guest” is someone who stays on a short-term basis and does not pay rent. If that is the case for your guests, then the rental restriction should not be a problem. To be sure, I recommend that you contact the management office to confirm what is needed, if anything, to register your short-term guests for occupancy. They may need parking passes or other temporary identification.

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Do I Need To Own a Home or Even Live in Florida to Sit On The Board?

Q. I understand that to be a member of the Board of Directors of a Homeowner Association in Florida, you need to own a home in the community. Is this the case? I heard some opinions that you do not need to be an owner in the Association, and that you do not need to a resident of Florida. What can you tell me about this?

A. The question of who is eligible is not the easiest to answer… Florida Statutes Chapter 720 provides that all members of the association are eligible to serve on the board of directors. The definition of an association “member” will be found in the community Declaration or Bylaws, but generally the members of an association include only those who are homeowners as shown in the public land records. It is possible that the community documents might grant membership rights to those who do not own a home, so you need to check your community documents to fully answer this question. There is no law requiring members of the association to reside in Florida in order to serve on the Board. Many homeowners live outside Florida for all or a portion of the year and still participate as Board members. Florida law allows absentee board members to attend meetings by speakerphone.

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They Won’t Replace Their Old Roofs, What Can We Do?

Q. I live in a small community in Naples with a Homeowners Association with 38 attached villas.  The roofs on the units are original and we do not have roof reserves.   Many of the owners understand the need and necessity for a new roof and have replaced their roof; however, others are refusing to do so.   The problem that confronts us now is that homeowners are having their hurricane insurance cancelled because of the aged roofs and can’t convince the attached unit owner of the importance of a new roof.  Is there any action that can be taken by the individual homeowner or the HOA to make it mandatory for the adjoining unit to also replace their roof when the adjoining unit has had their insurance policy or part of the policy cancelled?

A. This problem in HOA’s can occur when the HOA documents are not drafted or amended properly. Your villas are physically organized like condominiums, where the owners are sharing common walls and a roof. If your community was organized as a condominium, the association would have responsibility for the roofs and there would be reserves in place to repair the roofs when they fail. However, I am assuming that each owner in your HOA is responsible for his or her own roof under the HOA documents and that the documents are inadequate with respect to maintenance and repairs.   If the documents were drafted property, there would be language allowing the HOA to step in and make the necessary repairs if an owner failed to maintain the roof, particularly if there was damage to other villas. You should have an attorney review the HOA documents to determine what remedies you may have. Perhaps there is language allowing the HOA or an individual villa owner to pursue another owner who does not maintain his villa or otherwise causes damage or harm to other owners. I would also recommend that your HOA Board meet with its legal counsel to discuss necessary document amendments so that this problem does not continue.

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What Rights Do I Have When Nearby Construction Affects My Property?

Q. My neighbor is putting in a swimming pool and I am being asked to allow access over my yard for the construction. Our homes are close together, so I don’t believe that the pool company can access the rear of my neighbor’s house without going over my property. What will happen if I refuse to allow the access, and should the homeowners association be involved as well? 

A. In Florida, it is very common for homes to be close together and or even practically attached. These types of development are often referred to as “cluster living” or “detached villas”. Further, these homes are in almost every instance part of a homeowners association, so it can be falsely assumed that the association controls all property and that your permission is not necessary for construction that affects your home.   Whether or not there is an association, chances are that you own the lot that your home sits on. This can be confirmed by reviewing the subdivision plat or a survey of your property. If you own the lot and access over a portion of your property is necessary for construction traffic, you absolutely have the right to approve or reject the access. The pool company did the right thing by asking your permission. However, it should not be necessary to refuse the access provided you have some protection. First, ask the pool company if they are willing to repair any damage to your property caused by the access. It is likely that there will be extra wear and tear on your landscaping from the construction traffic. Second, you should ask for evidence of insurance and also an agreement to hold you harmless in the event of any injuries that may occur on your property. If you are protected from property damage and liability, the neighborly thing to do would be to allow the temporary access. Regarding the homeowners association, it is almost a certainty that the association will need to approve the swimming pool improvements. This can be confirmed by reviewing the community documents, which probably contain a procedure for securing approval for exterior alterations. In some cases, the community documents even require the homeowner making improvements to obtain permission from next-door neighbors. Contact the association’s property manager to make sure that they are aware of your neighbor’s plans. If you run into any problems, you should consult with an attorney.

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Delinquent Wealthy Doctor… Why Can’t We Be More Aggressive?

Q: I am on the Board of a high-end HOA community in Naples. We do not have any delinquencies except for one property owned by a doctor who is rumored to be wealthy. There does not appear to be a reason why we cannot be aggressive with this owner, but our current lawyer is not able to solve the problem. Do you have a suggested approach here?

A: Your association almost certainly needs to enforce its lien rights, in addition to pursuing a money judgment against this owner for the delinquent assessments, interest, late fees and legal fees incurred. If the association obtains the appropriate judgment, not only can it take the property by lien foreclosure, but the association can force the owner to fill out a sworn statement listing all of his or her property, income and other assets. Once that information is discovered, the association can apply serious pressure by garnishing wages, bank accounts and perhaps seizing other assets such as vehicles or vessels by a process called levy. If your association is not considering these remedies against a wealthy owner, it needs to seek more aggressive representation.

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Delinquent Owner lives out of town and his Friends Are Abusing The Facilities!

Q: We have an owner who is seriously delinquent and lives up north year round. However, he allows friends to visit and use the unit from time to time in the winter months. His guests use the pool and the other amenities and it is really causing a stir with other residents. What can we do to deny access to the unit?

A: Unfortunately, the association must allow the owner and his invited occupants to have access to the units. The association cannot legally suspend the rights to use common elements needed to access the unit, parking spaces or elevators. However, the association can suspend the right to use all other amenities, common elements and association property by sending a single notice, approved by the Board, to the owner and any occupants. If the association has the technology to disable key cards that provide access to the pool area, clubhouse and other common areas that are not needed to allow access to the unit, this can be an effective enforcement tool and should be done for all owners who are delinquent more than 90 days

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Should Meeting Notices Stay Posted Until The Meeting Commences?

Q: Meeting notices must be posted 48 hours prior to board meetings. Is there a requirement that they stay posted until the meeting happens?  On more than one occasion, the meeting notice and agenda have been taken down several hours prior to the meeting.

A: Yes, the meeting notice should stay posted for at least 48 continuous hours prior to the meeting.  Chapter 718 of the Florida Statutes governing condominiums provides: “Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency.”  The word “continuous” is the key to your question, in our opinion.  One could argue that the association could post the notice more than 48 hour in advance, leave it for 48 continuous hours only, and then remove the notice.  However, the better practice is to leave the notice posted until the meeting begins to avoid any legal challenges.  Chapter 720 governing HOA’s has slightly different language, but our opinion would be the same if your community is an HOA.

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New Laws Affecting Condos, Cooperatives & HOAs…

Governor Scott has signed a bill into law affecting Condominiums, Cooperatives and Home Owner Associations

SB 398 Effective July 1, 2017

The bill substantially revises requirements for estoppel certificates for condominium, cooperative, and homeowners’ associations.

The bill:

* Revises the period in which an association must respond to a request for an estoppel certificate from 15 days to 10 business days.

* Requires an association to designate on its website a person or entity with a street or e-mail address for receipt of a request for an estoppel certificate.

* Provides an estoppel certificate delivered by hand, mail, or e-mail has a 30-day effective period, and a certificate sent by regular mail has a 35-day effective period.

* Identifies the persons who may complete the estoppel certificate on behalf of the board or association.

* Specifies the information the association must provide in the estoppel certificate.

* Prohibits an association from charging a fee for an amended estoppel certificate, and provides a new effective period of 30 days or 35 days, depending on the method used to deliver the amended certificate.

* Provides an association waives the right to collect any moneys owed in excess of the amounts set forth in the estoppel certificate from any person, and his or her successors and assigns, who in good faith relies upon the certificate.

* Prohibits an association from charging a fee for preparing and delivering an estoppel certificate that is requested, if it is not delivered within 10 business days.

* Authorizes compliance with the estoppel certificate requirements for a cooperative association, as existing law provides for condominium and homeowners’ associations.

* Permits an association to charge a maximum fee of $250 for the preparation and delivery of an estoppel certificate, if there are no delinquent amounts owed to the association.

* Permits an association to charge an additional $100 fee for an expedited estoppel certificate delivered within 3 business days after a request for an expedited certificate.

* Permits an association to charge an additional maximum fee of $150, if there is a delinquent amount owed to the association.

* Specifies the maximum fee an association may charge when it receives simultaneous requests for estoppel certificates for multiple units or parcels owned by the same person and there are no past due monetary obligations owed to the association.

* Provides a lender or purchaser who pays for the preparation of an estoppel certificate may not waive the right to reimbursement if the closing does not occur and the prevailing party in a suit to enforce a right of reimbursement shall be awarded damages, attorney fees, and costs.

* Authorizes a cooperative to charge a fee for preparing and delivering an estoppel certificate but the authorization must be established be a written resolution adopted by either the board or a written management, booking, or maintenance contract.

* Requires the Department of Business and Professional Regulation to adjust the estoppel certificate fees for inflation every five years, rounded to the nearest dollar, and to publish the adjusted amounts on its website.

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As a Realtor, Can I Contact the Mortgage Holder and Sell a Foreclosed Property Since the Association Now Has Title?

Q: I am a realtor who has been contacted by an association to list and sell a property they have taken title to by foreclosure. The problem is that the property remains subject to a first mortgage and the former owner is nowhere to be found. I would like to simply contact the mortgage holder and sell the property since the association now has title. Can I do this?

A: You can contact the mortgage holder, but you will probably find that the mortgage holder will not discuss the loan with you and that you need the prior owner’s cooperation to complete this sale. When an association takes title by foreclosure of its lien, the first mortgage will survive that foreclosure. The reason that the association ended up with the title is because the property was not valuable enough for a third party to satisfy the first mortgage and the association at the foreclosure sale. Thus, the association gets the title by foreclosing its lien, “subject to “ the first mortgage lien. If you can get the prior owner to cooperate in a sale at this point, that would be ideal. It would be similar to a short sale, with the association conveying the property. However, it is been our experience that most banks are not helpful in this situation when the prior owner is not cooperating. The prior owner is the bank’s borrower, and the bank wants to deal with its borrower. I would suggest writing a letter to the prior owner offering a financial incentive to participate in the sale. If that does not work, I would recommend finding a tenant for the property if the association is willing to rent it.

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