Adopting Short Term Rental Restrictions

Q: My homeowners association is struggling with short term rentals in our community as many owners are using online providers to rent their homes for very short periods of time (sometimes nightly).  It is my understanding that the board for a homeowners association can set any non-discriminatory rental policy it wants, including minimum and maximum length of rental.  Is this true in Florida? J.T.

A: The answer to your question is “probably not.”  A review of your governing documents might result in a legal opinion that your board has that power, but that would be the exception to the rule.

Rental restrictions for a homeowners association are most commonly found in the declaration of covenants.  Most declaration of covenants can only be amended by approval of the owners.  Usually the approval of some type of super-majority is required, with either two-thirds or seventy five percent of the owners being the most common thresholds for amendments.

The board is most often granted authority over the administrative details of rentals (such as the right to require use of a specific application or registration form) in those communities where rentals are subject to association regulation.

Q: Can a condominium association in Florida prevent owners from renting their units? L.S.

A: The Florida Supreme Court addressed this issue in the 2002 landmark decision of Woodside Village Condominium Association v. Jahren, which my firm had the privilege of arguing before the Court on behalf of the association.  In that case, a condominium association amended its declaration to severely limit rentals by prohibiting annual and other long term rentals and basically only permitting seasonal rentals.

Certain unit owners complained that they bought their condominium units with the specific intention of leasing them annually, a practice permitted by the declaration when they bought their units.  These owners sued the association on the theory that they had lost vested property rights when the amendment was passed.  The trial judge and an appeals court sided with the investors.  However, the Florida Supreme Court ultimately found in favor of the association, ruling that when condo owners buy their units they are on notice that the contract that spells out their legal rights, the declaration of condominium, can be amended by the vote specified therein.

After this decision, investor groups lobbied the Florida Legislature for a change.  In 2004 the law was amended and now provides that an amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.

If your condominium was developed before 2004, there is some room to debate the retroactive effect of the statute.  However, most associations follow the law.

Q: I often hear allegations that my condominium association board of directors has violated the “sunshine laws.”  What does this refer to? D.A.

A: The Florida “sunshine law” applies only to certain governmental entities and agencies.  It is found in Chapter 286 of the Florida Statutes, and with few exceptions, generally prohibits any two members of a covered board or commission from meeting outside of a noticed and public meeting.

On the other hand, the notice and open meeting requirements that apply to community associations are found in specific statutory provisions of the Florida Homeowners’ Association Act, the Florida Condominium Act, and the Florida Cooperative Act.  Many attorneys, managers, and board members use the term “sunshine laws” when referring to these provisions, but really in a more colloquial or “industry slang” manner of speaking.

Section 718.112(2)(c) of the Florida Condominium Act contains all of the “sunshine law” provisions regulating notice and meetings for condominium associations.  You must also check the governing documents of your condominium association because they may contain additional requirements that must be met as well.

Unlike the Florida “sunshine law” which applies to governmental entities, association board members who constitute less than a quorum may meet at any time and discuss association business.  Obviously, without a quorum, formal decisions cannot be made.

When an allegation of “violating the sunshine law” is made in the community association context it usually means that an owner is alleging that a quorum of the board of directors has improperly met without noticing the board meeting and without allowing owners to attend.  That being said, there are two exceptions to the general rule that any time a quorum of the board meets the board meeting must be noticed and owners are permitted to attend.  The first exception is if the board is meeting to discuss personnel matters.  The other exception involves meetings with the association attorney to discuss pending or threatened litigation.  These “closed” board meetings must still be noticed, however, but owners are not permitted to attend.

Originally posted on floridacondohoalawblog.com. Written by Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

Board Can Regulate Alcohol on Common Property

Q: Our condominium association board recently made a rule that no beer, wine, or liquor can be brought into our swimming pool area. This came about because of one situation where some people got out of hand. Many of us enjoy socializing during “happy hour” around our pool. This seems like overkill and possibly illegal. What do you think? (K.M., via e-mail)

A: As the old saying goes, “one bad apple doesn’t spoil the whole bunch.” However, legally speaking, the decision is probably entirely in the hands of your board.

The Florida courts have held that a board-made rule regulating use of common property must be “reasonable.” While this is a stricter test than the standard used to judge the provisions of your declaration of condominium, the courts do tend to defer to the “business judgment” of the board in deciding what is reasonable. In order for a rule to be found reasonable, it does not have to be the only choice, nor necessarily the best choice, or even the choice that the judge personally agrees with.

In the 1975 case of Hidden Harbour Estates, Inc. v. Norman, a Florida appeals court specifically upheld the legal validity of a rule made by the association board prohibiting the consumption of alcohol on the common elements of the condominium. The court noted that “restrictions on the use of alcoholic beverages are widespread throughout both governmental and private sectors; there is nothing unreasonable or unusual about a group of people electing to prohibit their use in commonly owned areas.”

Your choices include asking for a meeting with the president and seeing if he or she will bring this matter back to the board for reconsideration. You could also seek to petition for an amendment to your declaration, which would supersede a board rule. A final option would be to seek to remove the board from office, which can be done by majority vote, or campaign for a more sympathetic board in the next election.

Q: In a condominium association, is my vote for amendments to the condominium documents public information that other unit owners can see? (R.O., via e-mail)

A: Most likely, yes. In a condominium association, other than for the election of directors, owners cast their votes in one of two ways. For owners who do not personally attend the meeting where the vote is held, they can only vote by limited proxy in most matters. Since a proxy must be signed to be legally valid, and is part of the official records of the association, it can’t be secret.

Owners who attend a meeting can vote by ballot or sometimes by voice vote. When ballots are cast at a meeting by members who are personally in attendance, I generally recommend that associations use signed ballots. That allows the votes to be verified in the event of a dispute, and to ensure those that have turned in proxies but also attend the meeting in person don’t inadvertently vote twice. Some bylaws permit voting by secret ballot at members’ meetings, but that is not common. It is my view that the board has the ultimate say in the type of voting documents used, absent specific requirements in the bylaws.

With regard to votes to approve amendments to the condominium documents, there are times where even if secret ballots are permitted, it is necessary to be able to verify which owners voted in favor of the amendments. For example, certain amendments regarding leasing are only applicable to those owners who vote in favor of the amendment, or who take title to their unit after the effective date of the amendment. In that situation, the association would have to be able to verify how each owner voted in order to determine whether the amendment was applicable to them.

For the election of directors in a condominium association, the statute requires the use of secret ballots. Secret ballots are also typically used in the election of directors for homeowners’ associations.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

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

Reserves Must Be Fully Funded Unless Waived

Q: Our condominium association just had a reserve study done for the first time in our twenty-year plus history. We learned that all of the funds we have set up are inadequate. The board said that to catch up the reserves would double our assessment, so they want to phase in the increase. Can they do that? Should the association have gotten a reserve study before now? (J.M., via e-mail.)

A: Although the Florida Condominium Act requires the association to obtain an insurance appraisal at least every 36 months, there is no requirement for a reserve study in the law. However, these studies are relatively inexpensive and are a good tool for boards in establishing reserve schedules, which are supposed to be updated annually based on changes in replacement cost and useful life assumptions, as well as expenditures from the fund.

Your situation is not unusual. A common mistake made by many associations is to simply use the reserve calculations inherited from the developer. In many cases, these schedules are overly optimistic on both useful life and replacement cost figures.

The board is legally obligated to prepare a budget that includes required reserves for roof replacement, pavement resurfacing, building painting, and any other item of deferred maintenance or capital replacement exceeding $10,000.00. These reserves must be “fully funded.” The board does not have the legal ability to “phase in” the full funding of reserves.

If a budget with fully funded reserves is going to impose an undue economic burden on the unit owners, the best choice for the board is to call an owners’ meeting and ask that the owners vote to “partially fund” the reserves. Certain procedures must be followed, but it is not complicated. If a majority of the owners voting at a meeting approve the partially funded reserve (which could include some “phased in catch-up” amounts if desired), that would be legally proper.

Q: Recently my condominium association board sent out notice stating that the board would be adopting a new set of rules. It was my understanding rule changes must be approved by the owners also. Is this correct? (G.B., via e-mail)

A: Not necessarily. The Florida Condominium Act grants authority to the board to adopt certain rules concerning the operation of the association. However, the statute does not specifically grant a board the authority to enact “use restrictions” regarding the condominium property. It is necessary to review the condominium documents, because these will be the source of the board’s authority.

Almost universally, the condominium documents will provide that the board has rule-making regarding common elements. Some documents grant the board the authority to make rules governing unit use, some do not.

Even if the condominium documents give the board authority to adopt rules for the “condominium property” (both units and common elements) there are limits on that authority. Case law in Florida requires that the rules adopted by the Board not conflict with rights contained within the declaration of condominium, nor rights which are “inferable” from the declaration. Also, board-made rules must be “reasonable,” whereas this is not a requirement for amendments to a declaration.

Rules must also be adopted in a procedurally correct manner. Any board meeting where rules which regulate unit use are to be considered must be noticed at least 14 days in advance to the unit owners by both delivery and posting on the condominium property.

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

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

Owner Vote Not Required to Purchase Unit in Foreclosure

Q: We have an owner who stopped paying their assessments to our condominium association. The association recorded a lien against the unit and foreclosed. The association was the only bidder at the foreclosure sale. Now some unit owners are saying that the board of directors acted inappropriately and there should have been a vote of the members before the association took title to the unit. They are saying that the association cannot purchase any kind of real estate without a vote of the members. Are they correct? (R.G., via e-mail)

A: Generally, a unit owner vote is required for the association to purchase real property. Section 718.111(7) of the Florida Condominium Act provides that the association has the power to acquire title to property and convey, lease or mortgage association property for the use and benefit of the members. However, the association may not acquire title to real property except as provided in the declaration and, if the declaration is silent, then the association must obtain approval of 75% of the total voting interests in the association.

There is a separate clause in the statute that addresses acquiring title to a unit following foreclosure of the association’s lien. Section 718.111(9) of the statute states that there is no limitation on an association’s right to purchase a unit at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments.

Therefore, while, a membership vote may be required for the association to take title to real property generally (including purchasing a unit on the open market), there is an exception for when the association is foreclosing its lien for unpaid assessments.

Q: My homeowners’ association recently sent out the annual financial statement. The statement is a “compiled” financial statement for the previous fiscal year. I questioned the board why we didn’t get an audit. The board said it did not want to have an audit and that an audit has never been done in the past. This seems outrageous. Isn’t every association required to have an audit performed at least occasionally? (W.O., via e-mail)

A: For homeowners’ associations, the level of year-end financial reporting that is required is dependent on the total annual revenues of the association. Under Section 720.303(7) of the Florida Homeowners’ Association Act, if an association has total annual revenues of less than $150,000, the association is only required to prepare a “report of cash receipts and expenditures.” If the association has total annual revenues of more than $150,000 but less than $300,000, it must prepare a “compiled” financial statement. If the association has total annual revenues of more than $300,000 but less than $500,000, it must prepare “reviewed” financial statements. Finally, if an association has total annual revenues of more than $500,000, it must prepare “audited” financial statements.

The statute also provides that the members may vote to reduce the required level of the association’s year-end financial report for a given year. For example, if the proper vote was taken, an association that is required to prepare an audit could prepare a cash receipts and expenditures report, compiled financial statements or reviewed financial statements, in accordance with the members’ vote.

The Board is also authorized to order more thorough financial reports than the statutory minimum. Further, the association’s governing documents may impose requirements more stringent than the statute.

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

Subdivision Lots Subject to Easement Rights

Q: What homeowners’ association activity is allowed within “access easements” and “lake maintenance easements?” We own the title to our lots but these easements against our property are set forth in our documents. Does this give the association or other owners the right to come on our property? (J.S., via e-mail)

A: The answer to your question depends on several things, including the language contained within the subdivision plat’s dedication language, the language in your declaration of covenants, and what easement  across your property may  held by third parties, such as utility service providers.

The basic rule is that a third party (your neighbors, your association, or a utility company) can use your property for the purposes intended by the easements imposed against the property. For example, many plats impose Lake Maintenance Easements (often referred to as LMEs). The purpose of the LME is for maintenance of a lake and it is usually the association which is the beneficiary of that easement. So, for example, the LME would give the association the right to come on to your property to maintain the lake, but would not give your neighbor the right to fish in your back yard. Work by the association within these easement areas, consistent with the dedication language and the purpose and authority detailed in the governing documents, is generally permissible at reasonable times and in a reasonable manner, and no prior permission is needed to enter your property.

On the other hand, if a plat dedicates an Access Easement (often referred to as “AEs”) to all lot owners around the bank of a lake, this would likely mean that your neighbor would have the right to enter upon that portion of your lot for enjoyment of the lake. Therefore, a careful reading of the plats and the homeowners’ association’s governing documents is needed to determine what easement rights others have across your land. A title search is usually needed to ascertain easements to third parties, such as utility companies.

This is also an important issue for associations to understand and address as concisely as possible in their governing documents. For example, an easement imposed on a lot may be described in the declaration of covenants as part of the common areas, but not necessarily an area the association should be maintaining, such as mowing the grass on a LME. Detailed document provisions regarding these issues can avoid disputes and uncertainty.

Q: My condominium association has historically had problems with certain owners not paying their assessments on time. In an effort to avoid collection problems in the future, the association is considering requiring that assessments to be paid on a one-time, annual basis, rather than paid monthly, as is our practice now. Can the association require assessments to be paid annually? (R.B., via e-mail)

A:  No. Section 718.112(2)(g) of the Florida Condominium Act states that assessments may not be made against the unit less frequently than quarterly. Therefore, a condominium association can require assessments be paid on either a monthly or quarterly basis, but cannot require assessments be paid on an annual basis.

However, if a unit owner is delinquent in the payment of assessments and the association has recorded a claim of lien against the unit, the statute provides that the outstanding assessments for the remainder of the budget year may be accelerated. Again, this is only in the context of a delinquent owner where the association has recorded a claim of lien.

Otherwise, for a condominium association assessments may not be collected less frequently than on a quarterly basis.

There is no similar limitation in Chapter 720, Florida States, the Florida Homeowners’ Association Act. As such, it is not uncommon for homeowners’ associations to require that their assessments be paid on an annual basis.

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

Rental Violations Can Be Frustrating

Q: Our condominium has a three month minimum rental term. However, there seem to be people coming and going all the time, often bringing suitcases like they are checking into a hotel. I know of at least one case where during conversation with a “guest” at the swimming pool, they commented on what a good deal they had gotten on their weekly rental. What can the association do about this? (J.L., via e-mail)

A: Your situation is not uncommon and a good set of condominium documents will put you in a much better position than poor documents. Unfortunately, there is a small segment of people who take the “ask for forgiveness, not permission” approach to condominium ownership. Admittedly, the temptation can be great since short-term rentals in desirable resort areas, especially during the “high season”, can generate substantial income. In all likelihood, many of these people are probably also cheating the government by not paying required bed taxes for these rentals.

There are two aspects to addressing your problem, detection and enforcement. Detection is decidedly more difficult, and this is where the provisions of your condominium documents come into play.

If your condominium documents do not regulate the use of units by non-paying guests staying at the condominium while the owner is away, it is much more difficult to detect rental violations. After all, the “renter” can simply say they are “friends of the family” and the burden is on the association to prove otherwise. While this can be done in legal proceedings, that is an expensive solution. Sometimes, however, it is the only choice.

Although many people buy condominium units with the expectation that they can let friends and family use them when they are not there, your declaration of condominium can regulate or limit that expectation. I have found that, at the least, it is desirable to have a system requiring guests occupying a unit in the absence of the owner to participate in some type of pre-occupancy registration. If, for no other reason, there is a safety factor in the event of some type of calamity, such as a fire.

In my experience, most associations do not attempt to significantly restrict the right of a unit owner to have family members occupy the unit in the owner’s absence, although pre-occupancy registration is still often required. With respect to occupancy by “unrelated” guests in the absence of the owner, I have seen many different approaches. Some associations prohibit such occupancies altogether. Others permit a limited number of unrelated guest occupancies in the absence of the owner, two per year being a common provision.

For associations with an “anything goes” policy regarding guests, you are back at square one in having to prove that the “guest” is really a “renter.” Some people advertise their units for occupancy in violation of the condominium rental regulations on various internet platforms that broker these rentals in some fashion. This advertising can serve as proof of participation in rental activities in violation of the condominium documents. However, the situation can be complicated because some platforms are set up to require nightly rental rates to be displayed. Some associations even have provisions in their condominium documents which make advertising for improper rentals a violation of the condominium documents itself.

When a violation has been confirmed, the owner must receive a “cease and desist” letter before formal legal action can be taken, so the dog gets one free bite, as they say in the law. If violations continue after proper notice, legal proceedings can be commenced to obtain an injunction against impermissible rentals. If the association prevails in that action, it is also entitled to the recovery of its costs and reasonable attorneys’ fees.

Fines and suspension of common area use rights are also another approach, effective in some cases, ineffective in others. Your best bet is to discuss this matter with your association’s legal counsel.

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

Who Replaces Condominium Building Windows?

Q: The windows in my condominium unit need to be replaced. My condominium association is stating that windows are my responsibility. Because the windows are part of the exterior building, doesn’t Florida law require the association to replace the windows? (S.R, via e-mail)

A: The Florida Condominium Act does not specifically address whether the association or the individual unit owners are responsible to maintain, repair, and replace windows. Section 718.113(1) of the Act states that the association is responsible to maintain the common elements. However, the statute goes on to state that the declaration can require that limited common elements be maintained by the individual unit owner benefited by the limited common element.

Therefore, whether the windows are the responsibility of the association or the individual unit owners will depend on whether the windows are part of the units or part of the common elements (and if a limited common element) and how the declaration assigns the maintenance responsibility. In my experience, it is fairly common to see the maintenance responsibility for windows and sliding glass doors placed upon unit owners rather than the association.

It is also important to note that the responsibility to insure windows and sliding glass door rests with the association as a matter of state law and cannot be altered through the condominium documents. Likewise, if the windows or sliders are damaged by an “insurable event,” such as a hurricane, the association is likewise responsible for repair or replacement of the windows as a “repair after casualty” at the expense of all owners, unless the association has “opted out” of that statute or if the statute is deemed inapplicable for constitutional reasons.

When the declaration requires the unit owners to maintain, repair, and replace windows, the current version of the statute also contains a procedure for the association, after majority vote of the owners, to install impact glass on a charge-back basis to the owners. Owners with compliant hurricane protection are excused from the assessment through credits. This provision of the statute is rather ambiguous and presents many technical legal issues, so a competent attorney should be consulted if this procedure is undertaken.

Q: A question has arisen in my condominium association concerning who has the authority to adopt the budget, the board of directors or the members. Can you clarify this for us? (D.A., via e mail)

A: As with many community association legal issues, the answer will be depend on the language of your condominium documents. The Florida Condominium Act does not specifically address the issue.

The statute states that board meetings where a budget is to be considered has to be noticed at least 14 days in advance by posting and mail or hand-delivery, and a copy of the proposed budget must be provided with the mailed/delivered notice. E-mail notice can also be used for those who owners who consent in writing.

Accordingly, the statute seems to contemplate that the board will approve the budget. In fact, the statute outlines a process by which the owners have the right to propose and adopt an alternative budget, when the budget adopted by the board requires assessments against the unit owners, which exceed 115% of the assessments preceding fiscal year.

However, it is not uncommon, particularly in older condominium documents, to see a requirement that the owners also approve the budget. In my opinion, such a provision is not at odds with the statute and would be enforceable. However, I do not believe such clauses are desirable for a variety of reasons.

It is also important to remember that even where the board has the authority to adopt the budget, the board does not have any discretion when it comes to reserves. Unless the owners have voted to waive or reduce the funding of reserves, any budget adopted by the board must include fully funded reserves.

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