Names of Unit Week Owners not Available in Timeshare Condominiums

Q:  You recently published an article stating that the names of fellow unit owners are a public record.  Is the rule the same for timeshare condominium associations?

A:  No.  When it comes to providing the names (and other information) of owners of a timeshare, the “rules” are different.  Unlike the Condominium Act (Chapter 718, Florida Statutes) or the Cooperative Act (Chapter 719, Florida Statutes), the Florida Vacation Plan and Timesharing Act (Chapter 721, Florida Statutes) provides that notwithstanding any provision of the Condominium Act or the Cooperative Act, an association may not furnish the name, address, or e-mail address of any owner to any other owner unless the owner whose name, address, or e-mail address is requested first approves such disclosure in writing. It is important to note, however, that even though owners are not entitled to the names and addresses of other owners, they can ask the association to mail materials to the other owners if the purpose of the mailing is to advance legitimate association business, such as soliciting a proxy for any purpose (including the recall of one or more board members or the discharge of the manager or management firm).

Q: Each of our condominium units has one assigned carport to park their car. There are only 20 additional parking spaces for 40 units. We have so many people that have two cars, that at certain times of year, there is nowhere for visitors to park. I only have one car and it seems unfair that I can’t have guests. Is there anything I can ask the management company to do about this? J.T. via email

A: Your board would be the proper party to address this issue, though the management company may be involved in the process. Parking limitations are one of the most common problems at condominiums (especially during the “season” and in older condominiums) and also the most difficult to solve.

For many years, zoning codes required 1.5 parking spaces per dwelling unit, so in many communities it would be mathematically impossible for every owner to have two vehicles parked on the property. Current codes generally require 2 spaces per dwelling unit, plus additional guest and handicap parking.

In a 1981 appeals court case called Juno By the Sea North vs. Manfredonia, the court was confronted with a dispute where the board had to deal with how to allocate 97 parking spaces in a 70 unit condominium. Although the central focus of the litigation was a challenge to the board’s right to assign parking spaces to owners who had not “bought” them from the developer as “limited common elements” (which was upheld) the subject rule appeared to limit each unit to one car with remaining spaces reserved for guest use.

There is no “one size fits all” solution to parking limitations. For example, while a “one car per unit” rule may seem fair to some, would a married couple who both work and have to drive separately think so? Your management company may be able to offer some solutions based on their experience, such as making certain spots “guest only” and implementing some kind of “second car” policy such as a prohibition against second cars with the board having the ability to grant hardship waivers, such as in the example I gave about the working couple. Good luck.

Q: My condominium association has a unit owner who engages in abusive conduct towards the members of the board of directors and other unit owners. Can the association take legal action to force this owner out of the condominium? (N.O., via e-mail)

A: No. There is a 1995 Appeals Court case called Kittel-Glass v. Oceans Four Condominium Association, which held that the Association cannot force a unit owner out of their unit due to document violations. Rather, the remedy would be to obtain an order directing that the owner not engage in conduct which violates the condominium documents.

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

Hoarders Present Difficult Challenges for Association

Q: Our condominium has a “hoarder” whose unit is filled with papers, newspapers, cardboard, plastic bags, and the like. I am worried about fire hazards and vermin infestation. Neither our board nor the manager are willing to do anything about this. Does Florida law provide me with any way to cure this situation? (H.R., via e-mail)

A: One line of inquiry is whether this person is over the age of 60 and/or has a disability; whether his unit is unsafe or unfit for human occupancy; whether he is also neglecting his health and hygiene, pets, and/or dependent children; and whether his failure to maintain the interior of the unit violates the condominium documents. Depending on the answers to these questions, there are several options you or your condominium association have to address this issue.

You or the condominium association may be able to report the unit owner’s self-neglect to the Florida Department of Children and Families (DCF). Florida law generally requires the reporting of known or suspected self-neglect or neglect of vulnerable adults, which include those over the age of 60 and those with disabilities, or children. DCF’s Florida Abuse Hotline receives reports 24 hours a day at 1-800-96-ABUSE or online at https://reportabuse.dcf.state.fl.us.

With the name and address of the unit owner, you or the condominium association can also request that a well-being check be performed by local law enforcement by explaining that there are concerns about the unit owner’s welfare and the habitability of his unit. Local law enforcement staff will then go out to the unit, knock on the door and, if no one answers, inspect what is visible from the outside. Depending on what is observed, local law enforcement may pursue a warrant for entry and to evaluate the unit owner. Further, to the extent the unit owner is over 60 years old or has a disability, or if dependent children reside in the unit, local law enforcement’s Special Victims Unit and/or DCF may also be consulted.

If the unit owner is failing to maintain the unit in a structurally safe and sanitary condition, local code enforcement staff may also be able to intervene. For example, Section 6-211 of the Lee County Land Development Code, incorporates the 1985 Standard Unsafe Building Abatement Code (“SUBAC”) by reference. Section 101.6 of SUBAC outlines maintenance obligations that if unfulfilled make a dwelling unsafe and unfit for human occupancy. To the extent the unit is not being maintained in good working order or in a sanitary condition, there may be a violation of SUBAC and local ordinance on which code enforcement staff can take action.

You or the condominium association could also seek the help and guidance of a local nonprofit organization that specializes in hoarding. While the local Department of Health generally does not have jurisdiction over hoarding or unhealthy conditions inside private residences the United Way of Lee, Hendry, Glades, and Okeechobee Counties, for example, and its social referral service can direct such concerns to the appropriate public or private agency. The United Way of Lee, Hendry, Glades, and Okeechobee Counties can be reached at 239-433-3900.

Condominium documents usually contain a nuisance provision prohibiting owners, lessees, and guests from using a unit in any way that unreasonably disturbs, is detrimental to, or is a nuisance to occupants of other units. This “catch all” language, at a minimum, may provide an opportunity for your condominium association to demand that the unit owner improve the conditions within the unit.

I recommend that you encourage your condominium association to speak with its legal services provider to assess how best to improve the condition of the unit and help the subject unit owner through one or more of these channels.

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

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

The Project Costs What!?! That Requires A Membership Vote

Condominium Associations are in the maintenance game it seems at times. Just when one project ends, another is beginning.  Maintenance is simply a fact of life for all condominiums.  A big problem arises in many condominiums, however, when the maintenance project is deemed by the membership to be too expensive as they believe the cost triggers their right to vote on whether the project can proceed.  This hiccup in condominium living usually comes up when the contract for the project is being discussed at a board meeting or when the dreaded special assessment notice gets posted.

It is of crucial importance that both owners and board members understand that just because a project carries a hefty price tag that does not make it subject to member approval.  Maintenance (which for purposes of this article includes repair and replacement work as well) of the common elements simply falls to the association no matter the cost. Note that I said maintenance rather than material alterations or additions.

Material alterations or additions occur for the most part, when you “palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its functions, use or appearance.”  Sterling Village v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).  Simply put, changing the lobby carpet to tile and changing the building’s color from white to gray are usually considered material alterations.  Even then, however, a member vote may not always be required.  The Condominium Act provides that if a material alteration is to occur, the association must first obtain the vote of the membership authorizing the alteration.  If the condominium’s declaration is silent as to the approval required, the statute requires it to be by 75% of the total voting interests.  If the declaration, however, touches on the issue of material alterations one applies its requirements.  In such a situation, if the declaration allows the association to undertake material alterations without a member vote then it can proceed.  If it allows material alterations up to a specific financial limit then the association can proceed within that financial limit without a member vote.  The declaration can however still require a member vote and have the vote be a much lower threshold than the 75% set forth in the statute.  It can also be higher.

Note that the cost of a project which is otherwise purely maintenance does not factor into whether a member vote is required.  Nor is cost a consideration when a material alteration is going to occur unless the declaration specifically takes cost into consideration.

Something else for associations to consider is that the same project may have elements of maintenance for which a member vote is not required and elements of work which rise to the level of material alterations where a vote is required.  To figure out if your project has elements of both requires an understanding of what the law deems a material alteration coupled with the findings of any industry professionals and the involvement of the association’s counsel.

There are also exceptions to the material alteration doctrine which make a project maintenance despite it obviously palpably and perceptively changing the common elements in the manner described in Sterling Village. If you feel your condominium’s project might be subject to one of these exceptions, you should discuss it with the association’s attorney who will help create a roadmap for determining if the exception really exists.

 

Originally posted on floridacondohoalawblog.com. Written by Marilyn Perez-Martinez

 

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

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

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