Am I Allowed To Build an Energy Saving Device on My Roof?

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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Can my Association Be Obligated to Find a New Buyer if a Sale is Denied for Good Cause?”

Q: Our condo documents obligate the association to purchase a unit if the Board denies a purchaser. We are also obligated to find a replacement tenant for a unit owner if we deny a lease. This is becoming a real issue because we effectively cannot deny a sale or a lease and we want the ability to do so if the new owner or tenant has a criminal background or terrible credit history. Do you have any suggestions? 

A: These provisions in condo and HOA documents exist to prevent the Board of Directors from arbitrarily and unreasonably refusing sales and leases, which can effectively keep a unit owner from freely enjoying and transferring his or her property. The law tends to favor the free use and transferability of real estate, unless the condo or HOA documents have reasonable restrictions on a transfer, lease or sale. It sounds like you need to have the association’s lawyer review the documents to determine if the association can deny a sale or lease for “good cause” without the obligation to find a replacement purchaser or renter. Many documents we see allow the association to deny a new purchaser or tenant because of criminal convictions, poor credit history or a history of evictions or disruptive behavior in other communities. These restrictions are enforceable if they are reasonable and if the association is consistent in doing so. If the association does not have the authority in its documents to regulate and approve new owners and tenants, it will have limited control on this issue and the problem is compounded by the fact that the association has to find a replacement buyer or tenant who is willing to pay the same price or rental rate. This can be very difficult for the association to do, and thus I recommend that you consider a comprehensive document amendment giving the association the right to deny problematic applicants and impose fines and penalties against owners and tenants who refuse to comply with the transfer process.

 

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Owner Has “Two Property Plan” – Are There Ways To Prevent Her Strategy?

Q: We have an owner in our condominium who now owns two units. Her original unit is “under water” on the mortgage and she has told neighbors that she is going to let it go back to the bank. She inherited the new unit, which has equity. She is going to move into the new unit and pay maintenance fees on it, and we believe she will stop paying maintenance fees on the original unit when it goes into foreclosure. Can we still lien the new unit? If not, are there any ways to prevent her “strategy”?

A: We cannot fully answer your question without reviewing your condominium documents, but our guess is that your documents probably do not allow the association to place a lien on a unit that is current on maintenance fees. Certainly, the association will be able to lien the delinquent unit, in addition to imposing suspensions on the unit owner’s rights if she becomes delinquent. A better strategy in this case might be to obtain a money judgment against the owner with respect to the delinquent unit.   That judgment could become a lien against the other assets of this owner, including the new unit with equity. Depending on whether the new unit qualifies as the owner’s “homestead”, this judgment lien could result in significant pressure and force the owner to consider other alternatives such as a payment plan or short sale for the original unit.

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Can Our Association President Have a Criminal Record?

Q. A member of the Board of Directors of our Homeowners Association, who has also been appointed by the Board as the Association President, was adjudicated guilty in 2006 of two counts of FS 893.13(6)(a), Possession Of A Controlled Substance, a third degree felony, and of three counts of FS 893.13(7)(a)9, Obtain Or Attempt To Obtain A Controlled Substance By Fraud.  This person has not disclosed his criminal record to the members and the Board either before or after he was elected to the Board and appointed President.  Is this person eligible to serve on the Board and as the Association President? 

A. Under the Florida laws governing homeowners associations, certain homeowners are not eligible to serve on the Board of Directors. Specifically, a homeowner who is delinquent in the payment of any fee, fine, or other monetary obligation to the association for more than 90 days is not eligible for board membership. In the case of your Board president, a person who has been convicted of any felony in Florida or in a United States District or Territorial Court, or has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, is also not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date the homeowner seeks election to the board.  Now that you know the law on this issue, it is time to determine whether this homeowner’s rights have been restored for at least 5 years. The association’s legal counsel can assist with that issue. If it turns out that his rights have not been restored, the board president would immediately be ineligible to continue serving. Fortunately for the rest of the board members, the validity of any action by the board is not affected if it is later determined that a member of the board is ineligible for board membership.

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Should We Form a Splinter Neighborhood Association?

Q: Our community is small but part of a large master HOA. We only have 50 single family homes, and the master HOA charges us a small annual fee and we don’t receive any services that I know of. Would it be advantageous for us to form a neighborhood association to manage our community and provide better services? 

A: While it may not feel like you are getting any services from the master association, chances are you are paying for your community’s share of the common roadways and landscape and perhaps a guardhouse or other common amenity. Before undertaking the process of forming a new association for your neighborhood, the community leaders should really think about their goals. Do you want more control on aesthetics and architectural issues?   Do you want more restrictions on leasing, pets and basketball hoops? If your master association documents are fairly basic in terms of rules and restrictions in your community, you might find if you polled your neighborhood that the residents enjoy the freedoms that they have with their properties. Therefore, my first suggestion is that you schedule a “town hall” type meeting with your residents to discuss the pros and cons of forming a neighborhood association. An advantage of having an association is that the homeowners can bargain for bulk services such as landscaping and cable television. A disadvantage, as discussed above, is the additional restrictions and regulation some owners may not want. Further, any homeowners who do not wish to join in the recording of your new HOA documents will not be bound by them.   If you struggle to get the support you need, you might consider forming a volunteer homeowners association that can provide some services to the community.

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Are We Insured For Kids Summer Camp in HOA Country Club?

Q. The country club inside our gated community is holding a summer camp for children at the pool area.  They will enter the community via school bus twice a week.  The master HOA is not related to the club, but it is concerned about the liability.  Is there some sort of indemnity or waiver we should obtain from the club?  Please advise.

A. If the master association is not legally affiliated with the country club, the only liability I see for the HOA relates to use of the HOA’s roads and access facilities. In all likelihood, the HOA owns and insures the roads inside the gated community and the country club has an easement over those roads for access to the club. The HOA should check with its insurance company to make sure that there is sufficient coverage for the school buses. Further, the HOA could require the club to add the HOA as an additional insured with respect to the club’s insurance for these activities. The HOA could also require the club to provide an indemnity, but the HOA should expect resistance from the club’s attorney if the access for the school buses is otherwise lawful and not excessive.

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Double Standards For Double Pet Owners?

Q. Our association has a rule on the books about the number of pets and types that can be owned. According to the rules no more that one dog can be owned at the same time. This rule hasn’t been enforced in years. There are quite a few residents in our community that own two or more dogs and yet the board is planning on litigating against one resident who is allegedly violating the pet rule. Can they do this? Doesn’t selective enforcement come into play here? Thank you in advance for an answer to these issues.

A. The resident being pursued for a violation of the pet rule might very well have good defenses based on selective and arbitrary enforcement. The association could have several issues here. First, is the association rule consistent with the recorded covenants in the community Declaration and bylaws? If not, the rule might not be enforceable at all. Second, while pet and other reasonable restrictions are generally deemed to be valid, the restrictions could lose their validity if they are not enforced on a consistent basis over time. We generally do not chastise our association clients if they delay enforcement efforts for a year or less, but if the association ignores the violations for years and then attempts to enforce a rule against a single resident, the association will likely have problems in court. If the association goes to court on this isolated violation and loses, it will also be responsible for the pet owner’s attorney’s fees and court costs.

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Can Our Board Have a Meeting Behind Closed Doors?

Q: We are having some issues with a few employees of our condo association. The issues involve job performance and insubordination. Our Board needs to discuss a resolution but we do not want to do it publicly because many unit owners will be vocal and the meeting could get out of hand. Is there a legal way for our Board to discuss this behind closed doors?

A: Your Board can properly meet in a “closed” session to discuss personnel matters. Please refer to Florida Statutes section 718.112 (2) (c). Issues with job performance involving association employees certain falls within this exception to the rule that all Board meetings be open to the membership. The only other exception involves meetings with the association’s attorney to discuss pending or threatened litigation. Technically, the association should still post a notice of the closed meeting at least 48 hours before the meeting. The posting requirement may seem redundant, but the statute still requires that there be notice to the members of all meetings.

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Girl Showers and Swims Naked at Our Community Pool!

Q. Our board would like to know what to do about a female resident who showers and swims naked at the community pool. We are a condominium community of 48 units located within a large gated community. This resident has been seen by many people including contractors that work at our small community. The board would appreciate any recommendations you have so that we can stop this behavior.

A. This is the first question we have received of this nature. We have received questions about loud music, aggressive pets, unruly tenants and other nuisances, but we have never encountered this. The short answer is that this is primarily a criminal matter. The next time that the resident is witnessed nude in the community, it should be reported to the Sheriff’s office. Certainly, the condo association should also issue a written violation notice and impose a suspension of the amenities, but the suspension requires a hearing with your violations committee. The quickest way to resolve this is to also contact the criminal authorities the next time this happens.

 

 

 

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Large Dog Barking All Hours Of The Day… Help!

Q. There is a large dog in our condominium building, but there is no size restriction in our condominium documents.   The dog has been seen off leash, but the main problem is loud barking at all hours of the day. The property manager has warned the resident who owns the dog, but the problems continue. What is the most effective way to stop these problems?

A. Assuming that your property manager has made the unit owner aware of the problem, the next step is a letter from your association’s attorney advising that the owner and tenant will be fined and that the dog will be removed if the nuisance does continue. In the interim, your property manager should be logging the dates of the violations and gathering the necessary data and evidence in the event that a lawsuit is required to remove the dog. Whether the dog’s barking is a nuisance that will be recognized and penalized by a court of law can be a matter of opinion, so your association should be prepared with multiple witnesses and even an audio recording of the barking if possible. The association can impose fines and suspend common amenities due to violations of the condominium documents, but the most effective method of removing this type of nuisance from the building is a lawsuit for removal of the nuisance animal, which will result in recovery of the association’s legal expenses if it wins the lawsuit.

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Is Imposing a Lawsuit The Best Option for HOA Unpaid Fines?

Q. Our homeowners association has imposed $1,500 in fines against a homeowner for several different violations that have not been cured. The yard has not been landscaped for months, and the roof needs pressure washing. The owner did not pay the fines and our board is considering a lawsuit in small claims court to collect. Is this a good idea, and are there better alternatives?

A. Small claims court can result in a money judgment against the owner for the unpaid fines, but your lawsuit also should include a claim for an injunction against the owner. An injunction can result in a court order against the owner requiring that the necessary maintenance work be performed, and failing to obey the court order can result in contempt of court. The amount of the fines also provides a window to potentially put a lien on the home. While the condominium statute does not allow fines to become a lien on a unit, the homeowners association statute provides that fines of less than $1,000 cannot become a lien. If your association really wants to be aggressive in its collection efforts here, and also apply additional pressure to get the necessary work done, your board should consider filing a lien for the unpaid fines.

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When are “Executive Sessions” by the Board of Directors Appropriate?

Q. The Board of Directors in our association routinely excludes members from attending Board meetings by holding an “Executive Session”. When challenged they claim that they have this right in order to discuss sensitive matters. Is this true, and what are the limitations?

A. According to Robert’s Rules of Order, a Board may meet in “executive session” and thereby exclude members and keep the proceedings secret. However, in a condominium or homeowners association, the only time a Board may meet in a closed “executive session” is when the Board is seeking legal advice from the association’s attorney with respect to proposed or pending litigation or meeting with or without the attorney to discuss personnel matters.  All other Board meetings should be open to the membership.

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When Will We (The Residents) Get Control of Master Amenities & Budget?

Q: I am on the Board of a condo association that is part of a master planned community. There is a mix of condo buildings and single family HOA’s. The amenities are complete, and construction of the homes is near completion. There are a couple of vacant parcels surrounding us that we believe will be developed, but nothing is happening. The residents who live here would like to have control of the master amenities and budget, but the developer has said nothing about a turnover date. How do we know when we are entitled to control and how can we make this happen?

A: We often counsel homeowners on developer transition, and the important thing to remember is that turnover is generally a positive thing for homeowners because it gives them control of their community. At turnover, the homeowners are entitled to elect at least a majority of the board which means, among other things, that they can hire vendors and create the association’s budget.   The timing for developer turnover is generally controlled by the master association’s documents. Generally, the homeowners are entitled to turnover when the developer has sold at least 90% of the homes in all phases of the community that will ultimately be operated by the association, unless the documents state otherwise. Although a single master association member can demand turnover, often a group of concerned homeowners will jointly hire legal counsel to provide competent guidance through the process. Once it is determined that the developer has sold enough property to trigger turnover, the developer should be willing to relinquish control and can be compelled to relinquish control by a court of law if necessary. If the developer refuses to start the process, the homeowners with the assistance of legal counsel can schedule the turnover election in which they will elect the member-controlled board. At that point, assuming the members are in fact legally entitled to control, the developer will be obligated to transfer control of association funds and property and also must provide a professional audit and engineering report addressing the financial and structural “health” of the community.

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Just Bought a Condo – Not Sure I Have Received All The Documents?

Q: I am new to Florida. I recently bought an older condominium unit in Naples and I am not certain whether I received all of the condominium documents and rules. How do I know if I received everything I am entitled to have as an owner, and who should I contact with any problems with my unit?

A: Before closing on the purchase of your unit, you were entitled to a great bit of detail with respect to the condominium association. Pursuant to Florida law, the seller of your unit was required to furnish copies of the Declaration of Condominium, articles and bylaws, any rules and regulations and a document entitled “Frequently Asked Questions and Answers.” You were also entitled to the association’s annual financial report. Before closing, you were entitled to three (3) full business days to review the above documentation before you were obligated to proceed with closing. The condominium form of ownership is not unique to Florida, but there are many complexities and it would probably benefit you to pick up a practical guide such as Peter Dunbar’s “The Condominium Concept”. For any questions about your association, you should contact the professional management company hired by your association. If there is no management company, you can go to www.sunbiz.org to search for the names and addresses of the board members who operate your community.

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How Should We Finance Storm Damage?

Q: Our Board is concerned about the cost of clean-up and repairs if a major storm were to hit Southwest Florida during the hurricane season. 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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Can We Assign Common Areas for Private Use by Select Residents?

Q. We have two enclosed areas next to our condominium building that are designed for the storage of private golf carts. This storage facility was built a couple years ago. There are not enough storage spaces to accommodate all unit owners, so our board proposes to hold a lottery and offer the spaces to those lucky owners who win a spot. The board is not going to charge any money or rent to use the select spaces, and I’m concerned that this is a misuse of common areas. Are my concerns warranted?

A. My first concern is whether the board obtained approval from the membership to construct or convert the storage facility, which I’m assuming is a common area. Generally, the board must have approval from 75% of the membership in order to make a significant alteration to common areas. Second, unless the condo documents authorize use privileges for select unit owners, common areas are to be used and enjoyed in common by all unit owners on a non-exclusive basis. For example, if you have common boat slips, it would be improper for a resident or group of residents to use the slips exclusively and not give others the opportunity to use the slips. Consequently, the association typically adopts rules and regulations governing the manner in which residents and their guests can use the common facilities. Here, your board proposes to assign the right to exclusively use common areas to a select group of residents. Without a document amendment approved by the membership that converts these storage spaces into limited common elements that benefit only the units that are lucky enough to win the lottery, I am concerned that this is possibly a misuse of common areas. Further, the board could charge a fee for the use of the storage spaces if authorized by the condo documents, and thus your association could also be missing an opportunity to generate additional revenue to defray operating expenses.

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Best Website for Basic Training on Bidding, Checks, Balances etc?

Q. Our condo board is now trying to fix past problems. Can you recommend a web site for beginners that offers basic lessons on bidding, checks and balances, etc?

A. Many law firms specializing in this area have useful information on their websites, including important legal updates. However, I think the best practical resource for new condo board members is “The Condominium Concept” authored by attorney Pete Dunbar. Pete practices in Tallahassee and he publishes an updated version of this book each year. I use this book as one of the course texts for my Condo and HOA law course at Ave Maria School of Law. Another option is to attend a certification class for new board members. You should take this class within 90 days of your election to the board. Many firms offer complimentary classes throughout the year.

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As The Treasurer, I Cannot Look at a Vendor´s File??

Q. I’m the treasurer of our condominium and asked to look at a vendor’s file during office hours. The property manager told me that I cannot see these records. Can this be correct? 

A. Florida condominium law does not allow you access and inspect the association’s “personnel records”, which include but are not limited to, disciplinary, payroll, health, and insurance records. However, you are entitled to review any employment agreements. Further, the term “personnel records” does NOT include written employment agreements with an association employee or management company, or budgetary or financial records that indicate the compensation paid to an association employee. In other words, you are entitled to know where your money is going and how much an association employee or vendor is paid.

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What is $$$ Threshold Before Multiple Bids are Required?

Q. What is the dollar amount when multiple bids should be obtained for work on condo properties? My requests to obtain bids are repeatedly denied by the condo association. Recently, I was berated by an audience member and a board member for pushing the issue for repairs that will total about $7,000. Any guidance is appreciated.

A. There are a few basic requirements that are in play when a condo association is obtaining bids for services, and the board really does not have the discretion to ignore these requirements. First, certain contracts must be in writing. All contracts for services (except legal and accounting) and all contracts for the purchase or lease of materials or equipment must be in writing. Second, when the contract price for the service or materials is more than 5% of the association’s annual budget, including reserves, the association must obtain competitive bids. The association need not accept the lowest bid, but the association has a legal obligation to at least obtain competitive bids and make a good faith attempt to evaluate all bids. Certain types of special contracts are not subject to competitive bidding requirements, and your association’s legal counsel can provide you with those exceptions.

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Community Required to Install a Handicap Lift in Our Pool?

Q. I have heard that our condo association might now have an obligation to install a handicap lift in our community pool. Is this really the law? 

A. Your association may have this obligation depending on the ability of the public to access and use your community pool. The American With Disabilities Act (also known as the “ADA”) now requires a private facility to install handicap lifts in the swimming pool if there is public access to the pool or if the residential units are a place of “public accommodation”. Hotels are an obvious example of facilities that would be subject to this ADA requirement. Even though hotels are privately owned, the general public is free to rent rooms and use the hotel swimming pool. The hotel must therefore install a handicap lift. Condo associations generally operate private residential communities, but in some communities there are short term rentals, timeshares, rental offices and other services that are consistent with public accommodations. Further, if your association has no leasing restrictions or permits leases of less than 30 days, it might be considered “public” for the purposes of this ADA requirement. If you are an HOA and your association hosts swim meets or water aerobics classes that are open to the public, your association might be obligated to install a handicap lift. If you are concerned that your association might be required to comply with this law, you should immediately encourage your board to contact its legal counsel.

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Abandoned Properties with No Foreclosure Action – Any Suggestions?

Q: The number of delinquent homeowners in our community has decreased through improvements in the housing market and consistent collection efforts through our management and attorneys. However, there are a few properties that remain abandoned and the lenders with first mortgages have not taken any foreclosure action going on 4 years. Are there any new strategies you can suggest?

A: Although the housing market has improved, this continues to be a problem for many communities in Florida.   There are some strategies to consider. If there is still a pending mortgage foreclosure action against the property, and that case has been stalled or stagnant for some time, the association should ask the court to order the bank to provide “good cause” why the bank cannot finish the case and take over the property. Our firm has been successful with this strategy lately and obtained court orders requiring stalling lenders to pay assessments and late penalties to the association. If there is no mortgage foreclosure action at all but there remains a first mortgage on the property, the problem is more difficult.   In these cases, your Board needs to meet with its legal counsel to decide whether to foreclose on its lien and take over the property directly, or explore other strategies for compelling the delinquent owner or the lender to make a move. If the property is in terrible condition and causing problems with property values in the community, the association might consider a lawsuit directly against the lender for waste and neglect of its collateral.

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Can Our HOA Cancel a 10-Year Agreement as Rates are “Out of Market”?

Q: Our HOA wants to cancel a 10-year agreement for bulk television service because the rates are out of market, but our attorney is telling us that we cannot cancel a contract simply because it was signed by a prior board.   Are you aware of any grounds that our HOA could assert for cancelling such a long-term agreement?

A: Your attorney is probably correct in this instance. If the term of the agreement was greater than 10 years, the Florida homeowners association statute gives the association more leverage for cancelling an unfair contract. For any agreement that is 10 years or shorter, the association has less leverage. Further, there is law allowing condominium associations in Florida to cancel contracts signed by the developer prior to turnover. Whether your homeowners association, which is legally not a condominium in all likelihood, can attempt to cancel the contract under the condominium laws or another legal loophole can only be determined by the association’s legal counsel.

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HOA Accounts in Miami and We are in Bonita… Is This Normal?

Q: The manager of our homeowners association recently received a request from an owner to inspect the association’s official records. As a board member, I was troubled to learn that our accounting records are maintained by a bookkeeping firm in Miami. Our community is located in Bonita Springs. 

A: This may seem troubling, but the association may not necessarily be breaking the law. Pursuant to Florida law, the association’s official records, including its accounting books and records, must be made available to a homeowner within 45 miles of the community or within the county in which the association is located. If your community is in Bonita Springs, the storage of accounting records in Miami could be a problem. However, the association can comply with the law by making the records available to a homeowner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.   Provided that your homeowners can access the accounting records online at the association’s local office in Bonita Springs, I would not be too concerned that the physical records are kept in Miami

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I Cannot See The Bids for a New Vendor Before a Contract is Signed. Really??

Q: Our board is searching for a new landscaper, I have asked to view the bids that they have received and was told I cannot review the new bids until the board votes and signs a contract. Is this true?

A: This is not true. In fact, the whole point of the competitive bidding process is to ensure that there is transparency and fairness in selecting the association’s vendors. Pursuant to Florida law, any contract that requires the association to spend more than 10 percent of its annual budget is subject to competitive bidding. The statute does not state that those bids remain secret or confidential until the board of directors accepts a bid and signs a contract. These bids, once received by the association, become part of the association’s official records that are available for your inspection if you are a homeowner. The bids should be made available to you within 10 business days after making written request to the association. You should send that request by certified mail.

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Should Road Maintenance be a Common Expense for All Residents?

Q: In our private gated community, all owners who live in multi-family communities are provided access roads to their driveways, with the exception of three multi-family communities located on one particular street.  The owners in those three communities are required to pay for their own road maintenance, in addition to the dues they are required to pay to the master association. All other owners enjoy access and road maintenance without additional fees.   Is it legal for for the master association to charge these additional maintenance fees to only certain communities, or should road maintenance be a common expense for all residents?

A: The answer to your question is probably found in the community documents. In most communities with a “master” association, common facilities such as the gatehouse, roadways, clubhouse, lakes and recreational facilities are operated by the master association and the expenses are shared equally by all residents.   It is also possible for developer to allocate a larger or smaller share of the expenses based on square footage. It is natural for certain homeowners to feel that they are paying more than their fair share of the operating expenses. For instance, a homeowner who lives very close to the community entrance uses the private roadways far less than a resident who lives a couple miles from the entrance, but the essence of community living is that owners by and large share in the common expenses equally regardless of the actual amount of use. Without having the benefit of reading your community documents, our guess is that these three communities that pay more money for the roadways are not part of the original development and may share in the expense by a separate cost-sharing access agreement created for another developer or phase. You need to have legal counsel review the community documents, subdivision plat(s) and the master budget to get a more precise answer.

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Owner Builds Higher Fence Than Approved. Can We Remove It?

Q: Our architectural review board approved plans submitted by an owner for a new fence in the backyard. The approved fence was to be a short, black iron fence that did not extend past the width of the rear patio. Construction started and the fence is much taller and wider than approved and will extend well beyond the width of the actual home when completed. All other approved fences are similar to the fence approved for this owner.  We have demanded that the owner stop work and remove the larger fence or modify the improvements in accordance with the approved plans. Can the homeowners association enter the property and remove the fence if the owner refuses to comply?

A: The owner should have submitted a new application for the larger fence, but now that it is installed, the solutions are not so simple. Even if the community Declaration contains sufficient authority for the association’s agents to enter property and correct this violation, there are some things to consider before sending out the demolition team. The association needs to weigh the severity of the violation against the risks involved with entering private property and tearing down a fence. For instance, the landscaping for abandoned or foreclosed homes can quickly deteriorate and there is very little risk involved with the association hiring a landscape company to maintain the exterior until the property changes hands. The costs of that maintenance can be recovered from the owner of the property in most cases. However, if the home is occupied by a full-time resident who is likely to get upset and start an altercation when a crew starts to demolish the shiny new fence, the association should seriously consider other alternatives. The association can impose fines of up to $100.00 for each day the owner fails to comply, which could result in a lien if not paid.  The association can also pursue an order in court to force the owner’s compliance and recover attorney’s fees incurred in that process. The association likely has the law on its side in this case, but we certainly recommend that your Board consult with its legal counsel before exercising “self help” and entering the owner’s property.

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Can Association Employees Talk about Work on Social Media?

Q: Our master association operates a country club and has a large staff. We are concerned about our employees using “social media” tools like Facebook and discussing work-related issues with co-workers on these websites. Is there anything our Board can do to protect the club? We are trying to recruit new members and we would like to prohibit our employees from talking about the club on their personal time.  

A: Restricting the use of social media sites for your employees is not easy. Many companies have a “computer policy” which restricts the use of personal websites and email during the work day, but many of these policies may be illegal based on recent rulings by the National Labor Relations Board (NLRB). Corporate policies on “social media” websites that completely prohibit the use of these sites for connecting with co-workers or discussing company issues are illegal. Many employers believe it is absolutely legal to prohibit negative or derogatory remarks about the company on the internet, but they do not realize that employees actually have the legal right to discuss wages, hours and employment conditions with co-workers, and this right extends to the use of “social media” sites like Facebook. Your company can develop a legal policy that provides guidance to your staff, but you should consult with a labor attorney or other specialist before enforcing such a policy.

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Shall We Update Our Rules with Our Declaration?

Q: Our community Declaration is very old and we are in the process of amending and re-drafting the documents to bring them current. One of our members has raised the possibility that our rules and regulations may not be valid due to the age of our documents. However, our bylaws have been amended in the last 5 years and they authorize our Board to adopt new rules. Do you think that our rules are also outdated and need to be renewed? 

A: If your community is currently amending your Declaration, it is probably a good time to also revisit your rules and regulations but it may not be legally necessary.   It is unusual that your bylaws were recently amended without also amending the Declaration, but the bottom line is that your board likely has the authority to adopt new rules and regulations if so authorized by the bylaws of the corporation. Before completing the amendments to the Declaration, your counsel should make sure that the rules and regulations are consistent with any new provisions in the Declaration because the Declaration will take precedence once it is finalized and recorded.

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Tenant Lease Refused on Credit Score. Is This Legal?

Q: Our homeowners association requires a lease application for rentals, and we do a criminal background check and a credit check. Recently, a realtor seeking approval of a lease told us that denying a tenant based on credit score is illegal. Is this true?

A: There are a lot of conflicting opinions on this issue, so your question is timely.  Community associations cannot deny a renter for illegal discriminatory reasons such as race, religion or national origin.  However, a tenant’s financial history can be proper for a lease application provided the governing documents give the association the clear ability to reject a tenant based on a history of financial irresponsibility.  The key is clarity in the governing documents and consistency with decisions. The association can review credit scores, but the better approach in our opinion is to look at whether the applicant has multiple blemishes indicating a history of serious financial irresponsibility.  These applicants are more likely to be problematic tenants.  If an applicant has a single short sale and one past due credit account but is otherwise a law abiding applicant, the Board should consider whether denial of that applicant is really in the best interests of the community.  After all, many people who need to rent in this economy may have a short sale or bankruptcy in their past and cannot currently qualify to buy a home.  However, if the applicant has a bankruptcy and multiple accounts in collections (which a credit report will show), we think it is proper and legal to deny on that basis provided there is clear authority to do so in the association documents.

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Is Our Board Obligated to Fix The Faulty Security Gates?

Q: Our condo complex was built with iron gates at the entrance and also a lift arm gate. The iron gates installed by the developer are in disrepair and they are expensive to fix. Due to delinquencies, our Board has not been able to budget funds to repair the gates but the lift arm is still functioning and vehicles still need to have a transponder to open the lift arm. Recently we have had some late-night incidents and some residents are demanding that the association fix the iron gates.   However, our Board has no data or other reason to believe that the security breaches are directly related to the lift arm being inadequate. Do you think that our Board is obligated to spend the funds necessary to fix the gates?

A: Your Board is probably not obligated to repair the gates if it lacks the funds, but this decision requires further investigation before a final decision is made. First, your association’s legal counsel should review the condominium documents and other development agreements to confirm that the maintenance of the original iron gates is not required. If the Board decides to effectively replace the iron gates with a lift arm gate, that could be considered a “material alteration” to the common elements that requires a membership vote. However, if the Board intends to repair the gate in the future, the decision whether to pass a special assessment and spend the money now falls within the Board’s “business judgment”.   The duty of the Board is to make decisions in the best interests of the association members. If the Board lacks video footage, police reports or other security records indicating that the gates are necessary and would have prevented these incidents, the Board members need to weigh any negative impacts of a special assessment against the possible risks of not maintaining the gates and make the best decision possible. The Board should certainly seek the advice of its legal counsel and professional manager before making this decision.

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Unit Owner Harassing Board Members… What Can We Do?

 Q: There is a unit owner in our condominium who continues to harass board members, both in and out of meetings. He also continues to demand the right to see association documents and records that are not open for inspection to members under Chapter 718. We have sent him letters from our attorney and imposed fines, but nothing seems to work and he continues to disrupt the community. Are you aware of any other measures we can take?

A: Your community is taking a common approach, but every so often there is an owner who continues to cross the line and more aggressive action is needed. For owners who refuse to pay a fine, the fine can be successfully collected in small claims court which is a relatively inexpensive process. Any judgment in favor of the association will likely include an award of attorney’s fees. If the association has followed the proper fining procedure outlined in its bylaws and Florida statutes, county judges will generally uphold the fine. The judgment can be enforced against the owner’s assets, which can include a garnishment against bank accounts and wages. Another solution is a change to the association’s bylaws known as a “nuisance amendment”. At your next membership meeting, the Board can ask the members to approve a new provision in the bylaws requiring a “nuisance” or harassing owner to pay the association’s legal fees incurred to correct the improper conduct. If the owner refused to pay, the legal expenses would become an assessment against that owner’s unit and secured by a lien if proper language was drafted.   The association would then have the ability to foreclose on a lien, which will really give the association the upper hand against unruly owners.

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Are “Management Collection Fees” Legal?

Q: Our management company is collecting $250.00 on each delinquent account as a “management collections fee”.   We are fine with this if they can collect it, but it is often challenged by banks and title companies when the properties are foreclosed and back up for sale. Some of these challenges result in delays in closings, which delays the collection of our delinquent assessments. Is this fee legal? 

A: Florida law is not entirely clear with respect to the collection of “management” or “administrative” fees on delinquent accounts, but many community association attorneys do not believe that these fees are authorized by either Chapter 718 or Chapter 720. Those attorneys generally take the position that the $25.00 late fee authorized by statute is adequate compensation for late payments, but of course that fee is paid to the association and not the management company. There is an effort by legislators to clarify the legality of these fees, so we can expect this issue to appear in a bill in an upcoming session in Tallahassee. Our position is that a smaller administrative fee for collections in the range of $25.00 to $50.00 is more reasonable and can be collected with relative ease. There is also the possibility of a law reducing the “estoppel fee” charged by associations and their management firms to provide information to title agents.

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No Agenda or Minutes for Committees. Is This Legal?

Q. My association states that they do not have to post an agenda for committees, nor do they believe that they are required to take minutes for any committee meetings.  I am particularly concerned about the Architectural Review Committee, which does not post agendas or take minutes of their meetings. Is this allowed under Florida law?

A. No, this should be happening with the architecture review committee or any committee that makes decisions on behalf of the association. Florida Statutes section 720.303(2) specifically provides that “meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds” and “meetings of any body vested with the power to approve or disapprove architectural decisions” shall be treated like board meetings. This means that the committee should post a notice and agenda at least 48 hours prior to the meeting and should also take meeting minutes and file them in the association’s official records.

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Homeowner Refuses to Comply to Violation Letters. What Can We Do?

Q. What are the options available to HOA board if unit homeowner refuses to comply with violation letter? We have several violations in our community involving leases, parking and pets, and we have sent violation letters, but we cannot get compliance on a consistent basis. 

A. The key word in your question is “consistent”. If an HOA does not adopt an enforcement policy that is consistently enforced across the board, your community will have a very low success rate when it comes to correcting violations. Over time, if the HOA stays lax and/or inconsistent with enforcement, the HOA will slowly lose its legal ability to enforce the covenants and rules at all. When a violation has occurred and is not corrected after a written violation notice, the HOA has the option of imposing daily fines of $100.00 in addition to suspending the homeowner’s right to use the common amenities. The problem with fining and suspensions is that the HOA must give the homeowner an opportunity to challenge or appeal the penalty in front of a committee of three members.

The committee cannot have any Board members, and it is often difficult to gather three homeowners to volunteer for this committee, particularly when they are asked to give up their free time to penalize their neighbors. Further, fines can be difficult to collect and suspensions can be difficult to enforce. I prefer the demand for pre-suit mediation. Under the Florida HOA laws, either the HOA or the homeowner can demand pre-suit mediation in any dispute involving violations of the rules. This demand will force the homeowner to either comply or spend money on lawyers and mediators defending their behavior. We find this tool to be more effective, and many homeowners end up complying with the rules before spending thousands on mediation. If the homeowner refuses to accept the pre-suit mediation, the association can file a lawsuit to compel compliance with the rules and recover its attorney’s fees and court costs from the homeowner.

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What is your Position on Committees and How are they Best Utilized?

Q. There is a movement on our association Board to delegate a number of tasks to committees.   I have talked to several of my friends who are on Boards in other communities, and none of them seem to have a consistent approach with respect to committees. What is your position on committees and how are they properly utilized?

A. Committees can be very helpful to the community if they are formed and operated in proper fashion. The most common committee in an association is the “architectural review” committee, but we often see committees that assist the Board with finances, budgets, legal matters, landscaping, amenities, access control and social gatherings. The first decision the Board needs to make when considering a new committee is whether the committee will be only advisory, or whether the committee will make decisions on its own. Generally, the president of the association has the ability to appoint advisory committees, but the Board as a whole will need to properly vote when forming a committee that will make decisions. An “architectural review” committee will typically stand on its own, and it is also critical to remember that committee meetings must be run similar to Board meetings if the committee is to going to make a decision involving association funds or approve exterior changes to property. This means that the committee should post a proper notice of the meeting, open the meeting to members and take proper minutes. At the end of the day, committees can ease the burden on Board members and are generally a good idea in busy communities, but the Board should make most if not all major decisions for the association.

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Concern About Uniformity of Enforcement in the Community.

Q. Our community is made up of several mid-size neighborhood associations, and a master association. There is concern about uniformity of enforcement in the community. Some of the neighborhoods are strict with enforcement of rules and standards, while others are lax. The result is that some neighborhoods look clean and orderly, while others look like a college campus. In the neighborhoods that are strict, vehicles are parked in their designated places and there is consistency with the exterior appearance of the homes. In the neighborhoods that are lax, vehicles are parked everywhere, garbage bins are left out, homes are not clean and there are unapproved renters.   Can the master association step in and do anything? 

A. I would need to review the master association governing documents, but it is likely that the master association has reserved the right to adopt its own rules and standards for the entire community and also the right to require the neighborhood associations to enforce their own standards. Generally when a community is first developed, the developer records a set of master documents for the entire community. If these documents are drafted properly, the master association will have the right to maintain a level of consistency throughout the community as neighborhoods are developed. Some neighborhoods may be developed by different builders, and as a result, the style of home and the governing documents within each neighborhood will vary. However, if the master association reserves the right to ensure a certain level of uniformity with respect to the appearance of the properties and enforcement of rules, then your master association should be able to improve this issue.   The master association’s board should first consult with its legal counsel on its rights to govern the various neighborhoods, and then it may be a wise idea to call a meeting of the various boards to discuss a solution.

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How Can Our Community Successfully Amend and Update our Documents?

Here’s my recommendation for the steps on how to complete a successful document amendment or re-write:

  • Meeting with the Board or Documents Committee.  The attorney needs sufficient feedback in order to customize the new documents to the needs of the community.
  • Attorney prepares first draft of new documents, and also a memo to the owners explaining how the new documents differ from the current documents.  This memo should be “plain English”, and is a critical tool in the process so that owners understand what they are voting on.
  • Transparency.  You should get feedback from the owners before the documents are officially mailed out with a proxy for a vote.  You can do this one of two ways.  First, you could email the document drafts and my memo to the owners and ask them to send feedback/comments to a Board representative within 30 days of receipt.  Or, you could schedule a “town hall” meeting when most of the owners are around.  The documents would of course be available to the owners in advance of the town hall (probably by email or posting on a website).  Or, you could do both steps discussed above.  It really depends on how much feedback you want and how you want to get it.
  • Finalize documents.  Based on feedback received from owners, we schedule a final internal meeting to discuss any final tweaks or re-drafting.   We will never make everyone happy, but the goal is to create a final work product that is acceptable to enough owners so that we ensure a successful vote.
  • Schedule special meeting for vote on documents.  The meeting would need to take place at least 14 days from the date of the mailing.  The mailing would include a meeting notice/agenda, proxy, document drafts and a memo explaining the documents and the process.   You could also have this as an agenda item at your annual meeting, depending on when that is scheduled.

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What is a Board Members Role?

Acting through the board as a whole, a board member should:

  • Enforce the documents
  • Establish sound fiscal policies and maintain accurate records
  • Develop a workable budget, keeping in mind the needs, requirements and expectations of the community
  • Establish reserve funds
  • Act on budget items and determine assessment rates
  • Collect assessments
  • Establish, publicize, and enforce rules and penalties
  • Authorize legal action against owners who do not comply with the rules
  • Review local laws before passing rules or sending bylaws to membership for approval
  • Appoint committees and delegate authority to them
  • Select an attorney, an auditor, insurance agent and other professionals for the association
  • Provide adequate insurance coverage, as required by the bylaws and local governmental agencies
  • Inform board members of all business items that require their vote
  • Inform members of important board decisions and transactions
  • See that the association is protected for the acts of all parties with fiscal responsibilities
  • Attend and participate at meetings

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A Board Member’s Role

Acting through the board as a whole, a board member should:

  • Enforce the documents
  • Establish sound fiscal policies and maintain accurate records
  • Develop a workable budget, keeping in mind the needs, requirements and expectations of the community
  • Establish reserve funds
  • Act on budget items and determine assessment rates
  • Collect assessments
  • Establish, publicize, and enforce rules and penalties
  • Authorize legal action against owners who do not comply with the rules
  • Review local laws before passing rules or sending bylaws to membership for approval
  • Appoint committees and delegate authority to them
  • Select an attorney, an auditor, insurance agent and other professionals for the association
  • Provide adequate insurance coverage, as required by the bylaws and local governmental agencies
  • Inform board members of all business items that require their vote
  • Inform members of important board decisions and transactions
  • See that the association is protected for the acts of all parties with fiscal responsibilities
  • Attend and participate at meetings

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Community Surveillance Cameras – Are They Legal and Who Can See The Footage?

It is legal  for your condominium association to install surveillance cameras anywhere on common property, except in places where residents would have a reasonable expectation of privacy, such as the clubhouse locker rooms.  In looking at the images you provided from the 3 cameras, those are definitely common areas and there is no privacy issue with the cameras themselves.

The other question is, who is entitled to view the recorded footage?  First, if anyone other than board members and your property manager have access to the web cam footage, I believe such access should serve a legitimate association purpose.  While I understand that the camera footage may be of general interest to many owners, I think the board needs to ask itself:  What is the association gaining by allowing owners to have access to these 3 video feeds?  In my experience, the only legitimate reason for an association to have gated access or other security measures is for the control of access.   Once associations start promoting these measures as a guaranty of additional protection, safety or security, the liability for the association skyrockets when there is a criminal incident.

I am concerned that the owner access could be creating unintended liability for the association for two reasons.  First, if an owner happens to observe a criminal trespass or other suspicious activity, what can he or she do about it?  The owner does not have authority to act for the association and may feel compelled to do so if an incident or intrusion is witnessed on the video feed.  We do not want a homeowner going to the scene of a criminal intrusion attempting to intervene and save the day as “association security”.  Second, what if a vigilant owner sees something and attempts to report it to the association?  Even if the association responded diligently, there could always be an argument that the association did not act fast enough and was negligent in the use of the video footage.

We need to remember that condo and homeowners’ associations are not set up or organized to ensure security, and I am concerned that the unrestricted access to the video footage is promoting the association and community as a “highly secure” place.   Therefore, I think your board would be wise to limit the distribution of video footage to law-enforcement personnel investigating a crime, and to others who can either produce a subpoena or articulate a compelling and legitimate reason for needing it.

The other reason for restricting access to only the board and its management is that video footage from the cameras would likely be covered by Chapter 718.111 regarding members’ right of access to official records.  Security-camera footage is not listed in the statute as one of the records that members are legally entitled to inspect.   Therefore, I think it is possible that an angry owner could report this practice to the Division of Condominiums as an inappropriate attempt to provide members with records they shouldn’t have.

If your board is looking to strengthen access-control measures and avoid the liabilities discussed above, I have a few suggestions:

First, you could post signs at the boating facilities and at the entrance gate advising residents and visitors that the property is under video surveillance, which will likely enhance the deterrent effect.

Second, the board could appoint an “access control committee” (not a “security” committee) and give those trusted individuals (maybe 5 to 7 people) secure access to all video footage.   This will put more sets of eyes on the footage without creating unintended liability.

Third, regardless of who ends up having access to the footage, the board should communicate to the residents that the cameras are solely for deterrence, access control and evidence-gathering, and that the cameras have not been installed to provide any guarantee of protection, safety or security.

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When Does the HOA Have Responsibility to Enter A Vacant Property & Remediate Water Damage?

Q. We have several abandoned units in our building due to foreclosures. When does the association have a responsibility to enter a vacant unit and remediate water damage and the spread of mold?

A. The directors for the association have a fiduciary relationship to the members, and it is our belief that the association has a duty to immediately send written notice to the unit owner if the Board becomes aware of the presence of mold. The notice would include language demanding that the unit owner undertake efforts to remedy the mold immediately, that their failure to do so may result in the Association undertaking the repairs and charging expenses to the owner, and that any damage to the common elements or other units caused by the owner’s negligence or inaction will be their responsibility. In the event the unit owner fails to abide by the demand letter, it is our opinion the Association should engage in mold remediation efforts to protect the common elements and other units. The Florida Condominium Act, and most Declarations of Condominium, grant the Association the authority to enter the unit and undertake the repairs that are necessary to prevent the further spread of mold.

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When Can the Association Tell Me to Get Rid of My Pets?

Q. The association rule in our condominium pertaining to pets has not been enforced for as many as 10 years.  My son has come to live with me temporarily and he brought his two dogs. The association claims that we can only have one dog.  There are as many as four other units that have two dogs and one having two cats.  Now the Board of Directors is harassing me alone (not the other unit owners with 2 dogs and two cats) and trying to enforce the “one dog per unit rule”.  Further, our documents are silent about animal restrictions, but there is an unrecorded Rule stating that only 1 dog is allowed per unit.  Can you give me some advice on this matter?

A. Your question touches on a couple of issues that are very common in local communities. First, there is the issue of delayed and “selective” enforcement. Second, there is the issue of a rule adopted by the Board that is not contained in the recorded covenants. Both of these issues are likely going to be problematic for your association, and I would certainly seek the advice of legal counsel if the harassment continues. First, I start to get nervous for my clients when a rules violation is ongoing for a year or more with no effort to enforce the rule and stop the violation. If the violation goes as long as 5 years without action by the association, the association will likely be completely barred from taking action because of the statute of limitations.

Second, an association is generally not permitted to adopt a rule that contradicts or is inconsistent with the recorded covenants. If the recorded covenants are silent on animals, a court will not likely uphold a rule that limits each owner to 1 animal. Again, your legal counsel can advise you on how to protect yourself, which may include a demand against the association for arbitration and recovery of your legal fees.

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Does a Delinquent Owner Have Voting Privileges at Our Annual Meeting?

Q. We have a serious delinquency and the homeowners association has pursued lien foreclosure. Does this delinquent owner have voting privileges at our annual meeting, and may this owner be considered when determining a quorum?

A. This owner will have voting privileges at your annual meeting unless the association has properly suspended the owner’s privileges prior to the meeting. Florida law allows the association to suspend voting rights for non-payment of any monetary obligation due to the association that is more than 90 days delinquent. Further, the vote allocated to the suspended owner may not be counted towards the total number of voting interests for any purpose, including, the number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under the community documents.

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Can My Condo Board Enforce I.D. Dog Leashes?

Q. Our condo documents permit pets. The Board of Directors has instituted a pet identification policy by issuing leashes at $20.00 per leash. Is this legal, and what if our security guards refuse to regulate or monitor the distribution of these leashes?

A. This policy is probably legal provided that the condo documents do not clearly prohibit the board from adopting reasonable rules and regulations concerning pets. The board, as I understand your question, is not banning pets but is merely requiring owners to obtain a special leash so that the pet and owner can be identified. The reason for this policy is probably related to proper identification of residents for enforcement and fining purposes. If the security guards are employees or vendors of the association and they refuse to carry out the association’s rules and regulations, the board should find a new security company but should first have legal counsel review service contract for that vendor.

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Are HOA Board Members allowed to Profit from Community Projects?

Q. It seems that our homeowners association is allowing members of the Board to profit from certain projects in the community. Last year, the association hired the wife of the Board President to redecorate the clubhouse. At the last board meeting I attended, there was talk of another Board member, who happens to be a realtor, renting out one of the homes that the association owns through foreclosure. There will probably be a rental commission paid. Are these transactions with Board members legal?

A. These transactions are not necessarily illegal, but they are generally not a good idea and your association needs to pay attention to a new law that could take effect on July 1, 2013. Chapter 720 of the Florida Statutes governing homeowners associations will now provide that if the Association 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’s of the Directors. Further, the contract or deal must be fair and reasonable in terms of the benefits received. In other words, the fee paid to the president’s wife for redecorating the clubhouse must be a fair fee based on market rates. Further, at the next regular or special member meeting, the contract or transaction must be disclosed to the members. The members can vote to cancel the contract or transaction by a majority of those voting.

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Will a pre-suit mediation compromise future enforcement with others?

Q. Our HOA is at odds with a homeowner about a screen enclosure that was added to the back of the home without approval from the association. The homeowner refuses to remove the unapproved structure. Our attorney has recommended that we demand pre-suit mediation with the homeowner, however we are concerned that if we make a deal with the homeowner that it could impact our ability to enforce the rules against other homeowners in the future. What are your thoughts on this?

A. Based on your question, pre-suit mediation would be the correct way to resolve this dispute. Pursuant to Florida Statutes Section 720.311, “disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes…shall be the subject of a demand for pre-suit mediation served by an aggrieved party before the dispute is filed in court.” In plain English, this means that your association cannot file a lawsuit to have the screen enclosure removed until it first demands that the homeowner participate in mediation. If the homeowner refuses after receiving the demand, the association can then file suit to correct the violation and also recover its attorney’s fees and court costs. Further, the association should not be concerned about the results of the mediation having any impact on future violations. There is a statute in Florida that prohibits a party from discussing any concessions, admissions or “deals” made at mediation. Perhaps the association might negotiate a deal where the homeowner is allowed to keep the structure and simply pays a fine and some of the association’s attorney’s fees. Thus, if the association believes that it makes business sense to resolve the case at mediation, that decision will not in all likelihood compromise the association’s position in future violation cases.

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Can My Association Make Different Rules for Renters?

Q. I was always under the impression that the Association could not make rules for tenants different from owners. I did a quick Internet search and it looks to me like this practice is not illegal, condo boards can make different rules for renters and often do. Is my research accurate?

A. It is important to remember that there is a significant difference between the Board’s rules and the recorded covenants in the community documents. There are court decisions in Florida which prohibit the association from discriminating against tenants in the rules and regulations made by the Board of Directors. For example, if an owner is allowed to have pets under the recorded Declaration and there is not a clear restriction against renters having pets, it is illegal for the Board on its own to adopt a rule prohibiting tenants from having pets. What the Board can do is go to the membership for an amendment to the Declaration in which renters would be treated differently than owners. We have had clients do this successfully. It is when the Board acts on its own with its rule-making authority that the line can be crossed.

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What Will Happen if We Don’t Have 5 Board Members?

Q: We have a 5 member Board of Directors but only 90 total condo units. With the upcoming annual election, I am concerned that we will not enough people to serve on the Board. This has traditionally been a problem in our building. What will happen if we don’t have 5 board members, and do you have any suggestions for improving this?

A: First, your association will not shut down if you only have four willing board members, or even three. Your bylaws probably state that you have a quorum of the Board with three directors, and those three directors will be able to make decisions until you have a full board. However, the board members you end up with should certainly make an attempt to fill the empty seats if your election does not result in a full board. You can do this simply by talking to your neighbors and encouraging them to serve on the board. After the election, a majority of the board members in place can appoint any member of the association to serve on the board. Further, while husbands and wives are generally prohibited from serving on the board together, this can happen if there are not enough candidates willing to serve. If your association is still unable to get a full board after a massive recruiting effort, your association should consider an amendment either reducing the Board to three members or eliminating the requirement that Board members have to be unit owners.

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We Want to Switch from Straight Line to Pooling Method… How Do We Do This Legally?

Q: Our condo association wants to switch from the straight-line method to the pooling method for accounting for reserves. We want to have more flexibility with these funds. We have more money in certain reserve accounts that we do not need, and other accounts are lower than they should be with certain repairs that are needed. How do we get this done legally?

A: Ideally, your association would get approval from the membership to switch the accounting method for deserves. The problem is that you might need 2/3, or in some cases 3/4’s of the owners to approve this common change and it is often difficult to get a membership vote on any issue. If your Board wants to make this change without a membership vote, it should at least do so at a properly noticed Board meeting so that the members are aware of the change. Further, the association needs to be extremely careful with the use of the reserve funds that are already in the reserve accounts.

Florida law is clear that a majority of the owners present at a membership meeting need to approve the use of reserve funds for a purpose that they were not collected for. For instance, if the association wants to take money from the roofing reserve account and use that money for painting the condo buildings, the Board needs to ask the membership for approval. However, when the association switches to the pooling method for reserve accounting, it has greater flexibility with reserve funds but only for those funds assessed and collected after a proper switch to the pooling method. I absolutely recommend that your Board consult with the association’s accountant and attorney before making this common but important change.

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We Need To Deny Tenants on Criminal or Bad Credit Checks… Help?

Q: Our condo documents obligate the association to purchase a unit if the Board denies a purchaser. We are also obligated to find a replacement tenant for a unit owner if we deny a lease. This is becoming a real issue because we effectively cannot deny a sale or a lease and we want the ability to do so if the new owner or tenant has a criminal background or terrible credit history. Do you have any suggestions?

A: These provisions in condo and HOA documents exist to prevent the Board of Directors from arbitrarily and unreasonably refusing sales and leases, which can effectively keep a unit owner from freely enjoying and transferring his or her property. The law tends to favor the free use and transferability of real estate, unless the condo or HOA documents have reasonable restrictions on a transfer, lease or sale. It sounds like you need to have the association’s lawyer review the documents to determine if the association can deny a sale or lease for “good cause” without the obligation to find a replacement purchaser or renter. Many documents we see allow the association to deny a new purchaser or tenant because of criminal convictions, poor credit history or a history of evictions or disruptive behavior in other communities.

These restrictions are enforceable if they are reasonable and if the association is consistent in doing so. If the association does not have the authority in its documents to regulate and approve new owners and tenants, it will have limited control on this issue and the problem is compounded by the fact that the association has to find a replacement buyer or tenant who is willing to pay the same price or rental rate. This can be very difficult for the association to do, and thus I recommend that you consider a comprehensive document amendment giving the association the right to deny problematic applicants and impose fines and penalties against owners and tenants who refuse to comply with the transfer process.

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