Estoppel Certificates

Some associations are still not complying with the new laws on Estoppel Certificates which is required of condominiums, cooperatives, and homeowners associations. Prior to July 1, 2017, you only had to provide the prospective purchaser with information about the monies owed to the association attributable to the unit being purchased.  Now you must provide a certificate with a considerable amount of additional information as described below.  If the information is prepared incorrectly you may be estopped (barred or precluded) from later going back to that individual for the funds or the violations that were omitted from the certificate.  My recommendation is that you have your attorney prepare the initial certificate and provide that certificate to your manager or management company as some of the information requires a review and analysis of your governing documents.

There is a long list of information which is required to be in the estoppel certificate found in Sections 718.116 (Condo), 719.108 (Coop), 720.30851(HOA), Florida Statutes which includes (by way of example only and not as a complete list):

  • parking or space number, as reflected in the books and records of the association;
  • attorney’s name and contact information if the account is delinquent and has been turned over to an attorney for collection;
  • an itemized list of all assessments, special assessments, and other moneys owed;
  • an itemized list of any additional assessments, special assessments, and other moneys that are scheduled to become due for each day after the date of issuance for the effective period of the estoppel certificate is provided.

The statute then requires you to provide:

  • whether there are any open violations of rules or regulations noticed to the unit owner in the association official records;
  • whether the rules and regulations of the association applicable to the unit require approval by the board of directors of the association for the transfer of the unit and if so, whether the board has approved the transfer of the unit;
  • whether there is a right of first refusal provided to the members or the association, and if there is if the members of the association have exercised that right of first refusal.

In addition, you are also required to provide a list of, and contact information for, all other associations of which the unit is a member, provide contact information for all insurance maintained by the association, and provide the signature of an officer or authorized agent of the association.

For some of you, your manager has handled this certificate when it was just a matter of filling in the amounts owed, because they took care of the accounting for the association.  However, reviewing and analyzing your documents to answer the questions on rights of first refusal and other questions should be handled by your association attorney and then provided to management for future use thereafter.  Further, if the management contract does not provide for charging for estoppel certificates the Board will need to approve a resolution in order to do so.

Originally posted on floridacondohoalawblog.com. Written by Mark D. Friedman

Penalties for Financial Reporting Violations

In 2018, the Florida Legislature revised a provision within the Condominium Act concerning financial reporting.  Specifically, if a condominium association fails to comply with a request from the Division of Condominiums, Timeshares and Mobile Homes (the “Division”) regarding providing a unit owner with a copy of the annual financial report, the condominium association, as a punishment, may not waive the financial reporting requirement for the fiscal year in which the owner’s request was made, or the following year.  The new law clarifies the time frame, whereas the previous version of the law did not specify how long the association was prohibited from waiving the financial reporting requirement.  Note that despite what an owner may claim, the penalty only applies when the association fails to respond to a request by the Division to provide a copy of the financial report to a unit owner.

Originally posted on floridacondohoalawblog.com. Written by David Muller

Complaint Against Neighbor Not Confidential

Q: I recently wrote a letter to the board of directors of my condominium association complaining about constant noise from my neighbor. I then learned that my neighbor was given a copy of the letter. Isn’t this supposed to be confidential? I do not really know him that well and do not want to be dragged into the middle of this. I feel like the association violated my privacy rights by showing my neighbor the letter.  (W.L., via e-mail)

A: The Florida Condominium Act generally provides that all written records of the association are open to the inspection and copying by the unit owners, unless specifically exempted in the statute. Therefore, essentially any written document related to the association is an “official record” of the association. Your letter to the board concerning your neighbor is an official record of the association.

There are exceptions to a unit owner’s right to inspect and copy certain records. For example, attorney-client privileged information, owner health records maintained by the association, and certain personal identifying information of unit owners (such as driver’s license and credit card numbers) cannot be made available for inspection. Your complaint letter does not fall into any of the recognized exceptions. In other words, owners have no expectation of privacy when they make a written complaint against another condominium resident.

Although the board or manager may or may not have overstepped their bounds in giving your neighbor the letter if he had not asked for it, your neighbor would be legally entitled to a copy of the letter if he requested it in writing, so there was no legal wrongdoing by the association. In my opinion, behavioral complaints which a condominium resident wishes to make with the expectation that the association do something about it should be in writing. In addition, although it is undoubtedly uncomfortable in some cases, when an owner wants to involve the association, I believe they need to be willing to “put their name behind their complaint.”

Q: The board of directors of our condominium association is supposed to follow Robert’s Rules of Order according to our bylaws. When they open the floor up to owner comments, there are things some the owners would like to have addressed by the board, so we make a motion to take up the issue. The board says that we are out of bounds and will not do anything. Who is right? (J.P., via e-mail)

A: The board. Regardless of whether Robert’s Rules applies to your board meetings or not (and it does not, unless incorporated into the bylaws), owners do not have the right to make motions, points of order, or otherwise participate in meetings of the board. Only members of the assembled body, here the board, have those rights.

Owners do have the right to comment on designated agenda items. Therefore, if the board is considering whether it is time to paint the buildings, you have the right to express your opinion on the issue, subject to the board’s right to adopt reasonable rules governing owner statements at board meetings. The right to speak is limited to designated agenda items. Therefore, if an item is not designated on the agenda, there is no right to speak to the board about it during board meetings, although some associations do set aside time for general owner comments.

In fact, the board itself cannot take up items at a board meeting unless they are on the posted agenda, except in certain emergency circumstances. If there is an issue that you feel the board should consider, there is a provision in the statute that allows 20 percent of the owners to petition the board to consider a particular item at a regular or special meeting.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

Hurricane Insurance Claims for Condominium Associations

There is a lot of information on how associations can prepare for hurricanes but much less information as to what happens after the hurricane, particularly as it pertains to insurance claims. A question that managers and board members need to consider is, what is required after a hurricane to ensure compliance with your insurance policy and recover money which may be owed?

Click here to read Sanjay’s full article in FLCAJ Magazine.

Originally posted on floridacondohoalawblog.com. Written by Sanjay Kurian