“Vaping” Rules Questioned

Q: We have a few people who “vape” at the swimming pool at our condominium. I complained to one of them once as the fumes were blowing in my direction. They pointed to the “No Smoking” sign posted at the pool and said “there’s no rule against this.” What do you think? (K.G. via e-mail)

A: While your neighbor’s actions certainly seem rude, whether they were (or will be) legally improper is a more complicated question. Generally speaking, restrictions on the free use of property are disfavored in the law, so the rule followed by the courts is that restrictions must be strictly construed.

Although I am not aware of any case precedents on point, I think “vaping” is different than “smoking” in the eyes of the law. However, just because the posted sign only deals with smoking, there may be other written rules that specifically address this issue. If not, you might want to suggest that your board look at updating the rules.

In my view, rules regulating (or even prohibiting) smoking on the commonly used common areas of a condominium would be given great deference by a court as far as the required legal element of “reasonableness.” I also believe that similar rules regulating “vaping” would be given the same treatment by a court.

I would also point out the Florida Clean Indoor Air Act prohibits smoking in indoor places of “work.” As that term is defined in the law, this will usually include the indoor areas of condominium and homeowners’ association common areas, such as meeting rooms and clubhouses. By virtue of an amendment to the Florida Constitution last November, effective July 1, 2019, “vaping” will be given the same status as “smoking” under the Clean Air Act. In other words, regardless of any Board rule on the topic, “vaping” in areas covered by the statute will be a violation of law.

Q: My condominium association is in the process of having its pest control company treat all of the units for insects. However, one unit owner will not give the association access to their unit and is stating that since it is private property, the association has no right to enter. Can the association amend the condominium documents to provide for a right of entry to the units?  (D.P. by e-mail)

A: I doubt that it is necessary for the association to amend its condominium documents regarding the right to enter units. Section 718.111(5)(a) of the Florida Condominium Act provides that the association has an irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.

Assuming that the declaration of condominium provides that the association has the authority to provide for pest control to the condominium property, including the units, the association has legal right to access all units for such purpose. Accordingly, while the association likely has the legal right to access the unit, if an owner is preventing access the association would have to take appropriate action to enforce its rights. There are arbitration decisions issued by the Division of Florida Condominium, Timeshares and Mobile Homes that have found that unit owners may not deny access by the association, nor may unit owners place conditions upon the association’s right of access to units. Therefore, if a unit owner is unreasonably preventing the association from accessing their unit for proper purposes, the association may be forced to take legal action in order to obtain such access. Although your association counsel should be consulted on the proper procedures, many associations also enact requirements for the posting of a key to all units, which has also been upheld by the Division.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A.,

HOA Board Can Purchase Bulk Cable and Internet

Q: The board of directors of my homeowners’ association is considering a bulk contract for cable television and internet service for our community. The association has never previously provided cable or internet service to the residents. If the contract is signed, all of the owners would be forced to pay for the service as part of their assessments. Is this permissible without a vote of the membership? (E.E., via e-mail)

A: Section 720.309(2), the Florida Homeowners’ Association Act, states that if the governing documents authorize the association to incur the cost of communication services, information services, or internet services obtained under a bulk contract, such expenses shall be deemed an operating expense of the association.

However, even if the governing documents do not provide for these bulk services, the law states that the board can contract for bulk telecommunication services, and the costs of such services shall be an expense of the association. However, if the governing documents do not address such bulk service contracts, the board must allocate the cost of the bulk service on a per parcel basis, rather than on a percentage basis, even if the governing documents contemplate assessments being allocated on a percentage basis rather than a per-parcel basis.

Therefore, the short answer to your question is yes. The board of directors, without a vote of the membership, can enter into a contract for bulk services, even if the association has not historically provided such service. This law was first enacted in 2011, so there may be some room to argue about its retroactive application to communities created prior to that date.

The statute also provides that any such contact may be canceled by a majority vote of the voting interests present at the next regular or special meeting of the members of the association. However, if the vote is not taken at the next membership meeting, the contract is deemed ratified.

Chapter 718, the Florida Condominium Act, contains similar provisions regarding bulk telecommunication service contracts.

Q: Our condominium was originally 7 different associations who went through a “merger” into one condominium. Our biggest association is 48 units, and we have 242 overall. We have gotten conflicting information on whether the new website law applies to us. What do you think? (F.S., via e-mail)

A: It probably does not. A new Section 718.112(2)(g) was first added to the Florida Condominium Act in 2017.

That law required any association “with more than 150 units” to have a website. The law was amended in 2018. Among other changes (including deferring the effective date of the law to January 1, 2019), the statute was amended to apply only to associations managing a condominium with 150 units.

Based on the information you provided, it appears that you have 7 separate condominiums (not associations) operated by one corporation (the association) as the result of a “corporate merger.” Therefore, your association is what is known as a “multi-condominium association.” The new law would not apply to your association because although it operates more than 150 units in the aggregate, no single condominium has 150 units or more.

That does not mean that your association cannot have a website, it can. It does mean that you do not have to comply with all of the technical requirements of the new statute, including some detailed provisions on documents required to be posted on mandatory websites. In addition, if you do have a “voluntary website,” my interpretation of the law is that your “estoppel certificate” (the form people fill out before closings to make sure there are no unpaid maintenance fees) have to be posted on that website.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A.,

Avoid a Gridlock – Educate, Communicate & Plan

When strangers come together as a new board of directors for a community association, they may find they have such differing views on what is best for the building that they can feel as though they are in a no win scenario.  While working to find a creative solution to the problem is something we as lawyers work on every day, it is not always quite as natural for board members, especially when they have never served in this capacity before.

Serving as a new board member has, among its challenges, a steep learning curve.  I think it is safe to say that condominium law and governing documents for a given community can, at times, be less than easy to understand.  Community Association law uses some unique terminology and there are sometimes subtle, but hugely important, differences on what something means depending on whether a particular word is used.  Consider the terms officers and directors.  While many people understand that a director is someone who is elected by the membership to serve on the board of directors and officer is a position that a director may hold, others may confuse the two terms.  Reading the Condominium Act, that person may read the provision that states that “Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration” and misunderstand that directors can be removed at any time on a board vote.

Another common confusion that arises is the use of the word “By Laws” instead of Declaration.  These are two very different documents and certain provisions must be in the Declaration in order to be valid.  Similarly, the use of the word “maintenance” instead of the word “assessments.”  A review of the Condominium Act will show that nowhere is an owner required to “pay maintenance” but they are required to pay “assessments” and their unit can be liened for failure to pay “assessments” timely.

When you couple the unfamiliar language that can be used in community association law, with the misunderstanding of what the documents require and years of a particular administration doing something a certain way, a brand new slate of directors intent on making changes can clash spectacularly and cause what Washington D.C. deems “gridlock.”

The first thing to do in a situation like this is to make sure that everyone becomes educated on the issues.  The statutes require “newly elected or appointed directors to certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.” Instead of this certification, the newly elected or appointed directors may attend an educational curriculum administered by a division-approved condominium education provider and submit a certificate of having satisfactorily completed the educational curriculum.

If new board members feel comfortable reading and certifying their knowledge of all of the information after reading the required documents, then by all means, they should do so.  However, for those who feel less than comfortable with the self-teaching that could be required in the first option, attending a class is a great option.  Many free classes are available to new board members and there are a myriad of ways to attend.  Live classes not only offer the opportunity to ask questions, but also to listen to other people ask questions.  Many times, this can be just as educational.  Also, if the new board of a condominium goes together to the class, it can provide a team building opportunity as well as ensure they are all getting the same information and can understand where the others are coming from.  It is important also in helping people to understand that just because the building next door does something in a particular way, does not mean that the law allows for this, or that your building should be doing it.  From a management perspective, attending these classes with new board members is also helpful to create realistic expectations and help all parties understand the division of labor and responsibilities that exist between a manager and a board.

Once the new board is educated, the communication is the key to understanding and working together.  Holding frequent board meetings to discuss condominium issues will help not only inform the unit owners, but also keep the lines of communication open on a regular basis.  The new board may find that frequent exchanges of ideas and concerns will facilitate an understanding that they are all working toward a better community and that there can be many paths that lead to the same place.  While email is a useful tool for our everyday lives, new (and experienced) board members should refrain from email exchanges when possible, as that can inadvertently lead to email decisions.  The statutes now expressly prohibit email “voting”, even though that was not necessarily authorized before.  The better goal is to have the discussions on the issues in front of the unit owners that may want to attend the meetings, rather than arrive at the meetings only to state the motion, hold a summary vote, and close the meeting.

Finally, creating and agreeing on a list of priorities can help shape the tenure of the new board.  As we all know, time flies when you are having fun.  Although a year can seem like a long time, in the world of projects, construction, maintenance and day to day operation of a condominium, a year can go by much faster than many people expect.  Rather than wasting the year debating on which project is most important, taking the time at the beginning of the year to decide the order and importance of necessary projects, maintenance, and issues to address can not only help shape the budget and expenditures in a fiscally responsible way, but also help temper unrealistic expectations of owners and board members alike.

In summary, educate, communicate, and plan before acting.

 

Originally posted on floridacondohoalawblog.com. Written by Lilliana Farinas-Sabogal

 

Can an Association Be Held Liable for Discriminatory Conduct of Residents?

On a daily basis, we read about acts of hatred and discrimination occurring in our society.  As residential communities are microcosms of the society at large, associations, too, are increasingly faced with determining how to deal with such issues.  Legal precedent has established that associations may be held liable for discriminatory acts committed by its Board members as well as its agents, including the association manager.  Pursuant to a 2016 rule enacted by the U.S. Department of Housing and Urban Development (“HUD”), however, associations can also be held liable for failing to “correct and end” discriminatory acts of residents.

Specifically, 24 CFR, Section 100.7(a)(1)(iii), provides that a person  is directly liable for “[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it.”  (Emphasis added.)  “Person,” as the term is used in this rule, includes community associations.  “Discriminatory conduct” includes unlawful conduct engaged in because of a protected characteristic (race, color, religion, sex, familial status, or national origin).  Thus, under this rule, it is possible for an association to be held directly liable where it (1) knew or should have known about discriminatory conduct by one resident towards another resident; (2) had the authority to correct the conduct; and (3) failed to take steps to end the conduct.

This rule raises more questions than it answers which is especially concerning given the potentially dire consequences an association may face if it fails to address the discriminatory conduct of a third-party.  For instance, can an association really be expected to “correct and end” the discriminatory conduct of a resident when its enforcement options are limited by statute and the governing documents which may ultimately prove ineffective?   HUD’s published response to this issue was that associations regularly rely upon notices of violations, threats of fines, and fines as mechanisms to compel compliance with the community’s restrictions and they should, therefore, use whatever legal means they may take to end the harassing conduct.  In practice, however, is a fine or violation letter, or even the inability to vote or use the common areas really going to correct the discriminatory acts of a person driven by prejudice?  Further, what if the third-party’s actual activity, even if discriminatory in nature, is not specifically prohibited by the association’s governing documents?  Does that mean that the association does not have the “authority to correct the conduct” and would not be held liable under the rule, or does it mean that the association would be required to amend its governing documents to address discriminatory acts by residents?  Additionally, does this mean that associations are now responsible for looking at the motivations behind a resident’s actions to determine if they are discriminatory in nature?

Presently, there are no real answers to these questions.  Given, though, that the rule requires an association to “take prompt action” the immediate take away is that an association simply cannot ignore a discriminatory situation between residents and would be well advised to consult its community association attorney to discuss the particular facts of the situation and work towards a solution that complies with the current HUD rule.

Originally posted on floridacondohoalawblog.com. Written by Sara K. Wilson

Names of Fellow Unit Owners Is Public Record

Q: I am requesting from the association office the names of each unit owner in my condominium association. Is the office legally required to furnish that list to me? (J.G., via e-mail)

A: If your request for the names of each unit owner was made in writing, the association is legally required to make them available to you for inspection or copying within 10 working days after the association received your written request. If the request was not made in writing, there is not a similar legal requirement.

The Florida Condominium Act provides that a current roster of all unit owners is an official record of the association that must be maintained by the association. Under the Act, the association is also legally required to make the current unit owner roster available to any unit owner for inspection or copying (at a reasonable expense) at all reasonable times on the condominium property (or otherwise within 45 miles of the condominium property or in the county where the condominium property is located) within 10 working days after receipt of a written request. Inspection and copying of the current unit owner roster would be subject to any reasonable rules regarding the manner and frequency of such inspections and copying duly adopted by the Board. The association may, but is not obligated to, offer the option of making the current unit owner roster available to you online or by e-mail.

The failure of the association to make the current unit owner roster available to you for inspection or copying within 10 working days creates a rebuttable presumption that the association willfully failed to comply with this legal requirement. A unit owner who is denied access to the current unit owner roster, or any other official record, is entitled to the actual damages or minimum damages of $50 per calendar day up to 10 days beginning on the 11th working day after the date the written request was received by the association.

For anyone who is concerned about personal information of theirs being shared with other unit owners, the Act protects certain telephone numbers, e-mail addresses, and other “personal identifying information” of unit owners, including social security numbers, driver’s license numbers, and credit card numbers. Although the law does not clearly define what is and is not “personal identifying information,” unit owner names, their unit numbers, and their mailing addresses are not personal identifying information exempt from official records inspection and copying requirements and are readily available online from the county property appraiser.

Q: My elderly mother lives in a neighborhood with a homeowners’ association. She is not really computer savvy. All of the newsletters and information alerts that the HOA sends out are by e-mail, so she is not in the loop as to what is going on in her neighborhood. This seems very unfair to me. Is this legal? (L.G., via e-mail)

A: It is not illegal.

Condominium, cooperative and homeowners’ associations in Florida must send official notices (for example the annual meeting notice) by U.S. Mail or hand delivery. However, if a property owner signs a consent form, the association may send them official notices by electronic transmission, typically referred to as e-mail.

In recognition of the prevalence and convenience of electronic communication, the law was also amended a few years ago stating that proxies for association meetings could be sent in by e-mail (scanned attachment) regardless of any provision in the association’s bylaws to the contrary.

For better or worse, the days of the mailed out “Association Newsletter” are reaching their end. There is no legal requirement for these communications and most associations use the means that is both easiest for the association, and most convenient for the majority of its members. In most cases, this involves either “e-mail blasts” or website postings, with no paper involved.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Enforcement Tool Belt – Fining/Suspension

In the proverbial “tool belt” of enforcement options available to an association for violations of the rules and regulations, the imposition of fines and suspensions is one that we frequently get questions about due to the procedures that must be followed.  If the process is not followed properly, it may result in invalidation of the fine or suspension, and can also result in potential legal exposure to the association.

Whether you live in a condominium, cooperative, or homeowners’ association, owners and their guests, tenants and invitees are bound by the association’s governing documents, which may include the declaration, articles of incorporation, bylaws and rules and regulations.  When owners or their guests, tenants or invitees violate the governing documents, associations have certain remedies available to it under Florida law.  In many circumstances, a friendly letter from the community association manager is sufficient to resolve the matter.  In other circumstances, a more formal “notice of violation” will bring an end to continuing violations.  However, in some instances further action is required to enforce a violation.

Florida law for condominiums, cooperatives, and homeowners associations authorizes an association to assess fines and to levy suspensions to enforce the governing documents of a community.  All three types of associations (condominiums, cooperatives, and homeowners associations) have the ability to impose reasonable fines, or to suspend for a reasonable period of time, the right to use common elements, facilities or association property for failure to comply with provisions of the declaration, the bylaws, or rules and regulations of the association.

Sections 718.303 (for condominiums), 719.303 (for cooperatives) and 720.305 (for homeowners’ associations) provide fining and suspension as a remedies available to the association, and also provides the procedures that the association must follow to enforce such remedies.

Generally, the board must appoint an independent committee (often called the fining committee or compliance committee). The committee cannot be comprised of officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If a violation is to be considered for a fine or suspension, the board meets at a duly-noticed meeting, reviews the matter, and “levies” a fine or suspension, if deemed appropriate. After the board levies the fine or issues a suspension, the person to be fined is then entitled to a hearing before the committee. Notice must be received at least 14 days in advance of the hearing. If the association does not hear from the party to be fined or suspended, or the individual does not actually appear at the hearing, the hearing should still be held. At the hearing, the committee must afford basic due process and allow the accused to be heard, state their case, and challenge evidence against them. The committee must then either “confirm” or “reject” the fine or suspension. If the committee rejects the fine or suspension, the matter is over. If the committee confirms the fine or suspension, the board then “imposes” it. After the board has imposed the fine or suspension, a letter should be sent advising of the amount of the fine and the date due.  With regards to a suspension, a letter should be sent advising the length of the suspension.

Originally posted on floridacondohoalawblog.com. Written by Jennifer Horan

The Subrogation Situation

With increasing frequency, insurance companies that provide unit owner insurance are suing community associations to recover payments made to the unit owner that are related to water leaks in the unit. The problem with these lawsuits is two-fold. First, the insurance companies are waiting years to bring them, although still within the statute of limitations for the lawsuit, but nonetheless to the detriment of the community association’s defense of the case as records and memories fade overtime. Secondly, the cases are many times brought in small claims court as a result of the insurance company seeking at most $5,000.00 in “reimbursement” from the community association. The issue with defending a small claims court case is that the cost of defending the lawsuit can be more than the amount the insurance company is seeking which puts pressure on the community association to simply settle. The basis of the insurance company’s lawsuit against the community association is negligence; the insurance company claims that the association had a duty to take some action, failed to take the action and such a failure led to loss that resulted in the insurance payment to the unit owner.

What can be done to limit a community association’s exposure to such lawsuits? First, the community association should consult with its attorney to determine if an amendment to the declaration for the association should be adopted related to subrogation. Next, community associations need to promptly respond to complaints related to leaks and properly document repair work in a detailed manner so that the location and extent of work is easily understood. The documentation related to repair work should be kept for seven years and be readily accessible. Community associations should perform routine maintenance and inspections of property that the association is required to maintain in order to identify in advance of a water leak areas of needed maintenance. Lastly, anytime there is a water leak or other casualty to unit, the association must thoroughly document, in writing, what happened to cause the leak, what was done in response to the leak and all communications between the association, the unit owner and the unit owner’s insurance company and adjuster. Such documentation should be shared with the community association’s attorney and kept in the association’s official records.

Originally posted on floridacondohoalawblog.com. Written by Marielle Westerman

Association Cannot Restrict Board to Florida Residents

Q: The board of my condominium association seems to always be stacked with seasonal residents who want things nice for the few months they are there, and to cut costs for the rest of the year. A group of year-round residents would like to start a petition to change our bylaws to require that board members be Florida residents, or at least reside at the condo so many months a year. How would one go about this? (J.L., via e-mail)

A: Initiating a bylaw amendment by membership initiative typically requires a petition to the board requesting the call of a special meeting and presenting proposed amendment language for the bylaws. The number of signatures required on the petition will depend on the provisions of your specific condominium documents. Twenty-five percent seems to be a common number. If the bylaws are silent on petitioning for a special meeting, the default requirement of the state corporate statutes is five percent all voters.

However, it is my opinion that such a petition would be fruitless and even if you got enough signatures, the board would not be obligated to present the amendment, because it is contrary to law.

Section 718.112(2)(d)4 of the Florida Condominium Act states that every unit owner has the right to serve on the board. There are certain limitations in the statute itself. For example, two people from the same unit cannot serve on the board if there is a contested election. Certain convicted felons are ineligible for board service. Certain financial defaults to the association disqualify a person from running for or serving on the board. There are a couple of other exceptions including the requirement for “board certification,” being charged with certain crimes, and the ability of the state regulatory agency to remove directors for misconduct. There is also the recent 8-year term limit statute which has been discussed in a number of my recent columns.

Other than those conditions set forth in the statute, limitations on the right to serve on the board are not legally valid. The Division of Florida Condominiums, Timeshares, and Mobile Homes, the state agency which has specified regulatory oversight of condominiums, has ruled that “residency requirements” for board service contained in association bylaws are invalid.

Q: I am on the board of my homeowners’ association. We are confronting a very divisive issue about potentially expensive renovations to our common property. The community seems evenly split and things have gotten unpleasant. Our board recently had to take a vote on whether to continue with this matter. I suggested that due to the divisiveness in the community, and so that each director could vote his or her conscience without fear of alienating people, that we vote by secret ballot. I was told this is illegal. Is that true? (S.G., via e-mail)

A: Yes. Section 720.303(2)(c)3 of the Florida Homeowners’ Association Act states that directors may not vote by proxy or by secret ballot at board meetings, except that secret ballots may be used in the election of officers.

Q: The air-conditioning and heating for my condominium unit comes from a compressor which sits outside on a pad. It recently gave out. The manager told me I had to pay for a new one. I thought that owners only had to pay for what is inside the four walls of their apartment. What is the ruling on this? (F.C., via e-mail)

A: Air-conditioning compressors are usually part of the common elements of the condominium. Under current state law, they are insured by the association. Therefore, if the compressor was damaged due to an “insurable event” (such as a lightning strike), the association would generally be responsible to repair or replace it.

If this is simply a wear and tear issue, your declaration of condominium will dictate the answer. In most condominiums, the compressors are described as “limited common elements” and are the maintenance, repair, and replacement responsibility of the unit owner. However, this is not universal, and the language of your individual documents will control.

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

Competitive Bidding Explained

Q: My condominium association recently solicited bids for major repairs to our condominium buildings. The cost of the project is several hundred thousand dollars. At the recent board meeting where the contractor was selected, the board discussed all of the bids and voted to proceed with a particular contractor. However, this contractor was not the lowest bid received. When the association must put out contracts for bid, isn’t it obligated to go with the lowest price? (C. J., via e-mail)

A: No. Section 718.3026(1) of the Florida Condominium Act applies to contracts for the purchase of materials or equipment and the provision of services. Any such contract that requires payment of an amount that exceeds five percent of the total annual budget of the association, including reserves, requires competitive bids.

People often ask if three bids are required by the statute. I believe the reference to “competitive” bids means that two bids are sufficient, though there is certainly nothing wrong with getting more. It is important that bids be for the same scope of work, however.

As to your specific question, the statute states that “nothing contained herein shall be construed to require the association to accept the lowest bid.”

It is also important to remember that certain contracts are exempt from the competitive bidding requirements of the statute. Exemptions include contracts for hiring association employees, as well as contracts with accountants, architects, association managers, engineers, landscape architects, and attorneys.

Section 720.3055(1) of the Florida Homeowners’ Association Act contains similar requirements for homeowners’ associations, although the obligation to obtain bids under this statute only arises when the proposed contract exceeds ten percent of the association’s annual budget, including reserves.

As with many issues in community association operations that are regulated by statute, it is also important to remember that the governing documents for an association can impose stricter requirements than regulations contained in the law.

Q: Our condominium has some different factions. I agree with one group and others are part of a second group. I recently ran for the board and lost by only a few votes. Right after the annual meeting, one of the people from the other group, who had not been up for election because she still had one year left on the board, resigned. The rest of the board then appointed one of their supporters to fill that seat. We think I should have been appointed to that seat and that this whole thing was rigged and underhanded. What do you think? (L.S., via e-mail)

A: Condo politics can be as rough as any. Unless there is a very unusual provision in your bylaws, candidates who run for the board but are not elected have no greater claims to vacancies that open up on the board than anyone else.

Section 718.112(2)(d)9 of the Florida Condominium Act states that vacancies occurring on a board are filled by majority vote of the remaining directors, even if they constitute less than a quorum. Vacancies are filled for the unexpired term of the seat being filled, unless otherwise provided in the bylaws.

Q: We just had the annual meeting for our homeowners’ association and I was elected to the board. Our manager said we have to now do an “annual MRTA review” but he was not exactly sure what that was, nor are we. Can you shed any light on this subject? (C.F., via e-mail)

A: MRTA is the common abbreviation used for Florida’s Marketable Record Title Act, which is Chapter 712 of the Florida Statutes. It is a rather complicated real estate statute, but of interest to you, it can extinguish your covenants after 30 years if certain steps are not taken to protect them by certain recordings. The Florida Homeowners’ Association Act was amended in 2018 to require the board of every HOA, at the first meeting of the board each year (excluding the organizational meeting) to review the association’s status under MRTA.

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

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