Question: We live in a small homeowners’ association and everyone knows everyone else. Is it possible for the association to impose fines but have the members of the fining committee remain anonymous? J.P. (via e-mail)
Answer: No. Both the Homeowners’ Association Act, Chapter 720, and the Florida Condominium Act, Chapter 718, lay out the process associations must follow in order to impose fines or common facility use right suspensions as punishment for violating the provisions of the governing documents or the rules of the association.
The process requires written notice to the individual to be fined or suspended, and the opportunity for a hearing before a committee. In the condominium context, there is no minimum number of members that must serve on the committee, but the committee must be made up of other unit owners who are neither board members nor persons residing in a board member’s household. In the homeowners’ association context, the committee must be made up of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.
Question: Our homeowners’ association governing documents do not have a provision that authorizes fining homeowners. The documents only contain a provision for levying assessments and a lien due to unpaid assessments. Do the Florida Statutes authorize all homeowner associations with the ability to fine regardless of that association’s governing documents? J.K. (via e-mail)
Answer: Yes, Section 720.305(2) of the Florida Statutes (2014) provides that an association may levy reasonable fines or suspend certain common area use rights against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association.
The same basic law, though under a different statute number, applies to condominiums. The law used to require that such authority be contained in the governing documents, but no longer does.
Under the statute, prior to a fine being levied or a suspension imposed, a notice of the violation must be provided and there must be an opportunity for a hearing. The statutes also contain limitations on the amount of fines and various details regarding the notices and composition of the committee that conducts hearings.
Before agreeing to serve on your community association’s Board of Directors, please do yourself and everyone else a favor and run through these five questions first.
1. Do I have time to serve on the Board?
Running and being elected to your community’s board of directors can be an exciting experience as it is an affirmation of sorts. However, once the election is over there is that little matter of actually attending meetings and handling the work that may be delegated to directors. In self-managed communities, your successful service on the Board is likely to be even more dependent upon your ability to carry your share of the workload. If you have certain circumstances in your life which would prevent you from being an active and responsible director, you should reconsider your decision to serve..
2. Can I make unpopular decisions?
Question: Our annual meeting for our condominium association was scheduled to be held on March 1. There were not enough members present, in person or by proxy, to establish a quorum, so the members present at the meeting voted to adjourn the meeting for 90 days. It was announced at that time that the meeting would reconvene at the same time and in the same location and on the specified date. Since that time, I have changed my mind on the question regarding waiving the reserves. I would like to revoke my proxy, but I am being told that I lost the right to do so on March 1, when the meeting was adjourned. M.G. (via e-mail)
Answer: You were not advised correctly. The Florida Condominium Act provides that a proxy is effective for the specific meeting for which it was given and any lawfully adjourned meeting thereof. However, no proxy is valid for more than 90 days after the first meeting for which it was given.
Question: Can a realtor request a copy of the association HOA budget? One of the properties in our Association went through all the foreclosure proceedings and the bank is now the owner. A realtor who is representing the bank has asked for a copy of the current association budget. When I asked why, she said she needed it to facilitate a sale. Is this correct? Are we obligated to give a copy of our homeowners’ budget to this realtor or should we ask for communication from the bank? — Patti B
Answer: Association members are entitled to inspect the association’s books and records which include the association’s operating budget. However, the bank here owns the unit and not the realtor. An association budget contains highly sensitive information including the amount of bad debt. Your reluctance to share this information, particularly when doing so could impact the resale value of your units is understandable. A bank employee with the proper authority needs to request this information, not the bank’s realtor.
Question: The common area of our homeowners’ association includes an area for storage of boats and recreational vehicles. Very few of our owners actually use the area, but we have received inquiries from people in adjacent communities as to whether they could pay a fee to store their boats and recreational vehicles in this area. Will this have an effect on our property tax exemption? S.E. (via e-mail)
Answer: While the association does not normally receive a tax bill for the common areas it owns, the property is in fact taxed. According to Section 193.0235(1) of the Florida Statutes, “ad valorem” (property) tax associated with HOA common areas (called “common elements” in the statute) is passed on to the owners within the subdivision. Property identified on a subdivision plat as “common area” is considered a “common element” for tax purposes so long as the property is used exclusively for the benefit of lot owners within the subdivision.
The 2015 Florida Legislative Session just ended with a number of bills passing which will impact your community’s daily operations. One very harmful bill failed due to the House adjourning early but is likely to return next year. Be sure to join us on May 20, 2015 at 2:00 PM – 3:00 PM to discuss the changes you will need to implement when these new laws take effect and the best methods to do so.
The webinar will be presented by CALL Executive Director Yeline Goin with Becker & Poliakoff Shareholder Donna DiMaggio Berger and members of our CALL Advisory Board joining us for this lively discussion.
In a surprise move, the House of Representatives adjourned “sine die” today. The 2015 Legislative Session was scheduled to last until Friday of this week, although we knew that there would be a special session or an extended session because of the impasse between the House and Senate over the budget and Medicaid expansion. By adjourning “sine die”, all bills that still require House action are “dead.”
The Senate is continuing to meet and as of this writing, they have not made a statement about the House adjournment. It is possible that the call of the special session could include pending bills, but the most likely scenario is that the special session will deal only with the budget.
Question: I live in a condominium unit. However I am not the unit owner, I rent the unit. I have rented this unit for several years, and as a long-term occupant of the condominium feel I have the right to know what is going on in the community. I recently attempted to attend a board meeting held in the clubhouse for the condominium and before the meeting commenced I was asked to leave. As a resident in the condominium, am I allowed to attend board meetings? R.N. (via e-mail)
Answer: Probably not. The right to attend and speak at board meetings is the legal right of the unit owner. Section 718.112(2)(c) of the Florida Condominium Act provides that unit owners are entitled to attend the meeting, speak at the meeting, and tape or video record the meeting. The term “unit owner” is defined in Section 718.103(28) and states that unit owner means the record owner of legal title of a condominium parcel.
If you are a tenant, you do not have the legal right to attend meetings unless you hold the unit owner’s power of attorney, and assuming the bylaws do not restrict power of attorney holders from attending board meetings.
Tenants are often contributing members in communities operated by associations, and many boards welcome tenant participation. However, there is no legal requirement that the association do so.
Question: My association has a rule that states that dogs should be “properly leashed and not run loose.” Pets must be “kept inside at all times except when being walked” and are “not to be chained in any of the common areas”. After finding my dogs in the back yard and barking, the Association fined me stating that “pets must be kept inside at all times”. The Association also stated that the dogs were a “nuisance” and were “disturbing the peace”. I do not think that the association’s rule forbids dogs from being in the backyard. What is your opinion? T.J. (via e-mail)
Answer: In 1940, the Supreme Court of Florida held that the barking, yelping, scratching and/or growling of dogs may constitute a “nuisance”, especially when such conduct disturbs others, causes loss of sleep, or annoys or prevents others from the possession and enjoyment of their property. Most associations have provisions in their governing documents which prohibit nuisances.