FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: I am a board member at our condo. We need to make a special assessment so that we will have enough money to get a new roof. What are the specific requirements that Florida condo laws require before we can make a special assessment?

A: Florida condo law requires your association to adhere to the following requirements when conducting a special assessment. In accordance with Chapter 718.112 of the Florida Statutes, your association must do the following:

At least 14 days prior to a meeting where a vote on a special assessments is to be made, the condominium association is required to provide a written notice to all unit owners. Such notice shall include an agenda and any details regarding such assessment. Furthermore, the notice shall be mailed, delivered or electronically transmitted to the unit owners. It is important to point out that the agenda and notice provided to the unit owners specifically state the assessments that will be discussed and voted upon at the meeting, the estimated cost and the purpose for such assessments. After the notice is provided to the unit owners, evidence of compliance with the 14 day notice by affidavit shall be provided by the person who provided the notice. Such affidavit shall be filed with the official records of the association.

Q: Our condo is going to be conducting an election for new board members. Can you tell us if Florida condo association laws have specific requirements for conducting the election? Or, do we follow corporation laws when holding an election?

A: Florida condominium law specifically states that at least 60 days before a scheduled election, the association shall mail, deliver, or electronically transmit, by separate association mailing or included in another association mailing, delivery, or transmission, including regularly published newsletters, to each unit owner entitled to a vote, a first notice of the date of the election. Any unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election. Together with the written notice and agenda, the association shall mail, deliver, or electronically transmit a second notice of the election to all unit owners entitled to vote, together with a ballot that lists all candidates. Upon request of a candidate, an information sheet, no larger than 8 1/2 inches by 11 inches, which must be furnished by the candidate at least 35 days before the election, must be included with the mailing, delivery, or transmission of the ballot, with the costs of mailing, delivery, or electronic transmission and copying to be borne by the association. The association is not liable for the contents of the information sheets prepared by the candidates. In order to reduce costs, the association may print or duplicate the information sheets on both sides of the paper. The division shall by rule establish voting procedures consistent with this sub-subparagraph, including rules establishing procedures for giving notice by electronic transmission and rules providing for the secrecy of ballots. Elections shall be decided by a plurality of ballots cast. There is no quorum requirement; however, at least 20 percent of the eligible voters must cast a ballot in order to have a valid election. A unit owner may not permit any other person to vote his or her ballot, and any ballots improperly cast are invalid. The regular election must occur on the date of the annual meeting. Lastly, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: I was at a meeting where the term “general proxy” and “limited proxy” were discussed. Can you tell me when it would be appropriate to use a “limited proxy” versus a “general proxy”?

A: First, your condominium association should always get a legal opinion from their attorney to make sure the appropriate proxies are being used. However, generally, Florida law states that limited proxies shall be used for votes taken to waive or reduce reserves in accordance with Chapter 718; for votes taken to waive the financial reporting requirements of chapter 718.111(13); for votes taken to amend the declaration pursuant to chapter 718.110; for votes taken to amend the articles of incorporation or bylaws pursuant to Chapter 718; and for any other matter for which Chapter 718 requires or permits a vote of the unit owners. Except as provided for in chapter 718, a proxy, limited or general, may not be used in the election of board members. General proxies may be used for other matters for which limited proxies are not required, and may be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. Notwithstanding the above, unit owners may vote in person at unit owner meetings. This does not limit the use of general proxies or require the use of limited proxies for any agenda item or election at any meeting of a timeshare condominium association. Discuss any specific issue with your association attorney.

You should also be aware that any proxy given is effective only for the specific meeting for which originally given and any lawfully adjourned meetings thereof. A proxy is not valid longer than 90 days after the date of the first meeting for which it was given. Every proxy is revocable at any time at the pleasure of the unit owner executing it.

Q: At a recent board meeting, the board discussed a renter who keeps violating the rules and regulations of the association. The board has asked the renter to stop violating the rules and also contacted the person that owns the unit. No matter how nice the board or management company has been, the renter refuses to abide by the rules. Since the board does not want to levy a fine, is there anything else the board can do?

A: One suggestion is discussed in Chapter 718.303, which states “an association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association.” I suggest that your board speak to the condominium association attorney for any other suggestions.

Q: Our association had an official records request from a unit owner wanting the names and addresses of all unit owners. The unit owner also demanded the addresses of the unit owners who live out of town most of the year. Are we required to give the unit owner the addresses to all of the unit owners?

A: The association is only required to give the address of a unit owner to the address where notice is sent for each unit owner. Therefore, if a unit owner gets all of his or her notices at the condominium address then any other address of the unit owner is private.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

After writing about Florida Condo Law for the past 17 years, my annual New Year’s Resolutions to all unit owners, managers and board members is my favorite column. Sometimes Florida Condominium Law and Chapter 718 of the Florida Statutes needs to be put aside for some common sense solutions. I hope you will agree with some of the following New Year’s Resolutions:

1. For those board members and managers who spend their time looking for unit owner violations – get a life.
2. Try saying thank you to those board members that volunteer their time.
3. If you think things are so bad, volunteer your time and help out.
4. Before running to a lawyer – try working it out – it’s cheaper.
5. The management company takes direction from the board not owners.
6. To the one owner who always has to speak at every meeting – please zip it.
7. To the board member who thinks he or she can do whatever you want – vote him or her out.
8. Before signing a contract – let your attorney review it.
9. Rules and Governing Documents are meant Not to be broken.
10. If you do not like following rules – do not live in an association.
11. If you do not like your fellow neighbor or owner – can you pretend to?
12. To vendors who want you to sign a contract immediately – say goodbye.
13. To owners who like loud music or loud T.V. – shut your windows.
14. To smokers who smoke in their units – shut your windows.
15. Before you defame someone – make sure you are prepared to be sued.
16. Don’t just ask a vendor for references – call some of them.
17. To the person who always disrupts a meeting – give it a rest.
18. If you are speaking for more than 5 minutes – ask yourself if anyone cares.
19. To the “Condo Commando” – you need to be recalled – kicked off the board.
20. If you came to Florida to retire – try acting like it.
21. If an owner is violating the documents – try first sending a nice letter rather than one from an attorney.
22. To those owners who think everyone on the board is getting a kick-back – just admit it that you want a piece of the pie.
23. To the owner who thinks he or she can do whatever they want – move back up north where you came from.
24. To the board member who will not let unit owners see the official records – sooner or later you will get caught.
25. To the board member who uses association money for their own personal use – get use to living behind metal bars.
26. A Manager works for the board not as your personal slave.
27. When you are rudely complaining to the association manager – do you know what he or she is thinking about you while you are talking?
28. Remember sometimes the way you say it is more important than what you say.

Wishing you a Happy and Healthy New Year and I look forward to hearing from you in 2012.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: We are a newly elected board of our condominium. Even though we have a contract with our management company, does the law allow us to cancel the contract?

A: While your board should always consult with your association attorney, Florida law, Chapter718.3025, does provide certain circumstances that would allow you to invalidate a contract, as follows:

“(1)No written contract between a party contracting to provide maintenance or management services and an association which contract provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be valid or enforceable unless the contract:
(a) Specifies the services, obligations, and responsibilities of the party contracting to provide maintenance or management services to the unit owners.
(b) Specifies those costs incurred in the performance of those services, obligations, or responsibilities which are to be reimbursed by the association to the party contracting to provide maintenance or management services.
(c) Provides an indication of how often each service, obligation, or responsibility is to be performed, whether stated for each service, obligation, or responsibility or in categories thereof.
(d) Specifies a minimum number of personnel to be employed by the party contracting to provide maintenance or management services for the purpose of providing service to the association.
(e) Discloses any financial or ownership interest which the developer, if the developer is in control of the association, holds with regard to the party contracting to provide maintenance or management services.
(f) Discloses any financial or ownership interest a board member or any party providing maintenance or management services to the association holds with the contracting party.
(2) In any case in which the party contracting to provide maintenance or management services fails to provide such services in accordance with the contract, the association is authorized to procure such services from some other party and shall be entitled to collect any fees or charges paid for service performed by another party from the party contracting to provide maintenance or management services.
(3) Any services or obligations not stated on the face of the contract shall be unenforceable.
(4) Notwithstanding the fact that certain vendors contract with associations to maintain equipment or property which is made available to serve unit owners, it is the intent of the Legislature that this section applies to contracts for maintenance or management services for which the association pays compensation. This section does not apply to contracts for services or property made available for the convenience of unit owners by lessees or licensees of the association, such as coin-operated laundry, food, soft drink, or telephone vendors; cable television operators; retail store operators; businesses; restaurants; or similar vendors.”

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: Our condominium has always allowed unit owners to rent their units. Most of those unit owners who rented their units did so for a short time. Many “snow birds” would use their condos for a few months and rent their units for the remainder of the year. Since the economy has changed, our condominium is like an apartment building. The owners that live here want to amend the documents to restrict rentals. We were told that even if we amended the documents, the unit owners who did not vote in favor of the amendment would be allowed to continue to rent. Is that true?

A: Yes, that is true. Florida law specifically states “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.” Therefore, even if the amendment to restrict rentals passes, those who vote against it will be “grandfathered” in and allowed to rent their units.

Q: In your previous column, you stated that if our governing documents do not discuss our authority to fine a unit owner, the association may still be able to levy a fine against a unit owner. We have a unit owner who continues to violate all of our rules and regulations and we want to fine this owner. Are we required to give the unit owner notice before we levy a fine against him?

A: Yes. A fine or suspension may not be imposed unless the association first provides at least 14 days’ written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. If the committee does not agree, the fine or suspension may not be imposed.

Q: I am a board member of our condominium association. We have a unit owner who wants to rent his unit, however he has not paid the association its maintenance for the past six months. The unit owner told us that he wants to rent his unit and threatened to sue us if we tried to stop him from renting his unit. Our board wants to know if we have the right to disapprove his tenant if he is delinquent in paying his maintenance to the association?

A: If the association is authorized by the declaration or bylaws to approve or disapprove a proposed lease of a unit, the grounds for disapproval may include, but are not limited to, a unit owner being delinquent in the payment of an assessment at the time approval is sought. I suggest that you contact your association attorney to make sure your disapproval of his tenant complies with the governing documents.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: I have read several articles about the new condo laws that have been enacted during the past year. There are several laws that have to do with 90 day delinquencies. Can you please outline what these laws are?

A: There are four different laws that involve the number ninety (90). First, every board member who is elected or appointed must certify in writing to the Secretary of the Association that he or she has read the association’s governing documents and that he or she will uphold such documents and policies. Furthermore, the director must certify that he or she will discharge his or her fiduciary responsibility to the association’s members. If you need a copy of this document, please email me and I will be happy to forward it to you .
Second, A director or officer of the association who is more than 90 days delinquent in the payments of monies owed to the association shall be deemed to have abandoned their position creating a vacancy to be filled.
Third, A unit owner that is more than 90 days delinquent in paying money that is owed to the association, can be suspended from using the common areas and common elements. However, a unit owner cannot be prevented from access his or her unit, using their parking space, elevators or utility services.
Fourth, A unit owner who is more than 90 days delinquent in the payment of monies owed to the association, can be suspended from voting at the association.
It is important that before an association takes any action, it consults with its association attorney.

Q: I am on the board of our association in Broward County. We have two unit owners who do not allow us into their unit for pest control. One of the unit owners has more papers and boxes in his unit that would not allow anyone to walk around the unit. Is there anything we can do about this?

A: The association has the right to take action when the association believes that the common elements would be adversely affected. If two unit owners do not allow the pest control company to spray their units, it can be argued that this will adversely affect the safety or soundness of the common elements since rodents or pests can spread to the common areas and other units. Furthermore, a fire and health hazard can exist when a unit owner that has so many papers and boxes that prohibits a person from walking around the unit. You need to discuss this situation with your association attorney to determine your options.

Q: We have an official records request from a unit owner who wants to see all of the official records of the association. Are there any records that the unit owner is not entitled to?

A: Yes. Some of the records that a unit owner is not entitled to are as follows:
Social Security Numbers; Driver’s License Numbers; Credit Card Numbers; Email Addresses; Telephone Numbers; Medical Records of the unit owners; records protected by the attorney-client privilege; and addresses of unit owners other than the address where notice is mailed. There are other records that may be protected.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: I read in one of your columns’ that a condominium association has the right to fine a unit owner for violating the by-laws or governing documents of the association. Our association fined a unit owner for violating one of the rules passed by the board. Even though the rule is not in our governing documents, the board believes it can fine owners who violate it. Can the board fine an owner for violating a rule, which is not part of our governing documents?

A: Yes. Florida law specifically states that the association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing. However, the fine may not exceed $100 per violation, or $1,000 in the aggregate.

Q: Our condominium association is a series of buildings that look like townhomes. As the owner of a unit, our son served in the Iraq war and we decided to put an American flag by the outside of our door. About one week after we put the flag out, we were told to remove it by the management company. The community manager told us that the board did not approve the flag and that it would have to be submitted to our architectural review committee. My wife and I submitted our proposal to the association however, it was denied. When we asked for the reason of denial, we were not provided with a reason. We checked our association documents and it does not prohibit us from placing a flag on the outside of our property. Can you tell me the law relating to this subject?

A: Florida law states “Any unit owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 41/2 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, regardless of any declaration rules or requirements dealing with flags or decorations.”

Q: I own several units at a condominium association in Ft. Lauderdale. Each year I have rented out my units on a seasonal or annual basis. The previous board of directors never asked for anything except the name of the people who I rented the units to. A new board has been elected and they told me that they want to approve all of my tenants. I was also informed that if I am delinquent in the payment of maintenance, the board will refuse me to rent out my unit. Can the board refuse to allow me to rent my unit if I am late in the payment of my maintenance?

A: If the association is authorized by the declaration or bylaws to approve or disapprove a proposed lease of a unit, the grounds for disapproval may include, but are not limited to, a unit owner being delinquent in the payment of an assessment at the time approval is sought.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: We are discussing our insurance renewal options. Our insurance agent told us that we must insure our property for what it would cost us to replace it. In order to save money, are we allowed to insure the property for less than the cost of replacement?

A: No. Florida law states that adequate property insurance, regardless of any requirement in the declaration of condominium for coverage by the association for full insurable value, replacement cost, or similar coverage, must be based on the replacement cost of the property to be insured as determined by an independent insurance appraisal or update of a prior appraisal. The replacement cost must be determined at least once every 36 months.

Q: As president of our condo, we have a unit owner who held a party over the weekend. One of the guests’ damaged the wall in the lobby. We submitted the damage claim to our insurance, however due to our deductible we will be required to pay the entire amount. Can we require the owner to pay for the damages done by his guest?

A: Yes. A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property not paid by insurance proceeds if such damage is caused by intentional conduct, negligence, or failure to comply with the terms of the declaration or the rules of the association by a unit owner, the members of his or her family, unit occupants, tenants, guests, or invitees, without compromise of the subrogation rights of the insurer.

Q: I attended a board meeting and wanted to speak about a certain issue. The board told me that they were not addressing that issue at the meeting and I did not have a right to speak. In one of your column’s you stated that all owners have the right to speak at meetings. Is that correct?

A: No. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. If the issue you wanted to speak about was not a designated agenda item, you do not have the right to speak. Furthermore, the association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.

Q: Can the association charge me a fee when I want to renew a lease with a current tenant?

A: No charge shall be made by the association or any body thereof in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. However, if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made.

FLORIDA CONDO LAW QUESTIONS AND ANSWERS

Q: I just agreed to serve as a board of director of my condominium. My fellow board members told me that as a board member, I would not have any personal liability. Also, I was informed that if the board did something improper, we would be covered under the association insurance policy. Can you tell me if this is true? As a board member, is it a possibility that I can be personally liable?

A: Yes, a board member can be personally liable in certain circumstances. Florida law states that an officer, director, or agent shall be liable for monetary damages as provided in Florida Chapter 617.0834 if such officer, director, or agent breached or failed to perform his or her duties and the breach of, or failure to perform, his or her duties constitutes a violation of criminal law as provided in Chapter 617.0834; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Q: I live in a condo in Ft. Lauderdale. I was just informed that the board of directors intends to levy a special assessment to make repairs to the common areas. Does the board have the right to make these decisions without a vote of the unit owners? If the unit owners object to the special assessment, can the board vote to approve it?

A: Generally, the board of directors has the authority to approve a special assessment. Florida law does require the board to provide notice to the unit owners and to hold a meeting to vote on the special assessment.

Q: Every summer I leave Florida and travel for 3-4 months. I just returned to my condo and learned that the president and a repairman were in my unit. Nobody called my cell phone to ask permission. When I confronted the president, he said the law allows him to go into my unit. Is that true?

A: Yes. The association has the 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 or units.