Representative John Cortes has filed three separate bills which significantly impact community associations, and in particular, homeowners’ associations. The bills are:
HB 653, Relating to Homeowners’ Associations: The bill, among other things, provides that the Division of Condominium, Timeshares, and Mobile Homes will be renamed as the Division of Condominiums, Homeowners’ Associations, Timeshares and Mobile Homes. The Division would have the authority to regulate homeowners’ associations and to investigate certain complaints, conduct certain investigations, impose penalties, and collect a fee against homeowners’ associations for purposes of regulation.
HB 665, Relating to Community Association Managers: The bill, among other things, renames the Regulatory Council of Community Association Managers as the Board of Community Association Managers. It also provides responsibilities relating to the Board, revises provisions relating to licensure of community association managers and community association management firms, licensure by examination, continuing education, fees, and disciplinary proceedings.
HB 667, Relating to Community Associations: The bill, among other things, combines the three statutes that regulate condominiums, cooperatives and homeowners’ associations (Chapters 718, 719, and 720) into one statute governing all three types of communities. The new statute would be called the “Common Interest Communities Act.”
At this time, there are no Senate companion bills. The 2016 Legislative Session will begin on January 12, 2016.
Question: I live in a condominium association and recently submitted my intent to be a candidate for the board for the upcoming election. Following receipt of my notice the association advised because I missed the “forty day deadline,” my name would not be included on the ballot. I did miss the deadline, but I feel this is incredibly unfair, the association cannot exclude me from the ballot for this reason can they? J.C. (via e-mail)
Answer: Yes. Section 718.112(2)(d)(4)(a), Florida Statutes provides that at least forty days before the scheduled election the unit owner must give their intent to be a candidate to the association. This requirement has been interpreted by the Division of Florida Condominiums, Timeshares and Mobile Homes, to be an absolute deadline and associations may not extend it. Therefore, the association was correct.
Question: I recently submitted a resume to be a candidate for the election to the board of directors at my condominium association. However, after considering it further, I have decided I do not want to serve on the board. Am I allowed to withdraw my name? C.P. (via e-mail)
Answer: You may withdraw from the election by sending the association a written statement to that effect. How the association handles such a withdrawal would depend on when the written withdrawal is received.
If the association receives your notice before the ballot package is sent out, the name of an owner who has withdrawn should not be included on the ballot. This would be the best case scenario. However, if the association receives the notice of withdrawal after the ballot package is sent out, the association is not obligated to send out new ballots or otherwise inform the owners that a candidate has withdrawn, though it may do so if it wishes. If a candidate who has withdrawn is nonetheless elected to the board, the association should treat those votes as void and the next highest candidate would be seated.
Question: I live in condominium consisting of 46 free-standing single family homes; 22 of them were built with skylights. During the rainy season, my roof developed a leak originating from the skylight. When I reported the leak, the association said that repairing the skylight was my responsibility. The declaration does not list skylights as a specific responsibility of the unit owners but does say that the owners are responsible for items such as windows and balcony glass. The roof is listed as a responsibility of the association. Should not the skylights be considered the association’s responsibility, as part of the roof? E.K. (via e-mail)
Answer: Possibly. One of the most common questions facing unit owners and associations when condominium property is in need of repair is, “Who is responsible for fixing this?” The answer is often found in the condominium documents which should contain a description of the boundaries of the units and identify the maintenance responsibilities of both the association and the unit owners. Often, particularly with original developer-written documents, these responsibilities are not spelled out with the detail that is typically considered desirable. You state that the responsibility for maintenance and repair of “windows” belongs to the unit owner while the association is responsible for “roofs.”
When both parties find language in a document to support their position, or where the language is ambiguous, the parties may require a court to resolve the dispute. Decisions made in prior cases, either by a court or DBPR arbitration, may provide insight as to the likely outcome in your case. There have been cases that have found that skylights are “windows.” In applying this to your facts, you, as the unit owner, would be responsible for the repairs and the costs associated with the roof leak in your skylight because you have the responsibility for repairing and maintaining windows per your condominium documents.
My advice would be to consult an attorney who can carefully review the condominium documents.
Question: As an association manager, I have a question that has always bothered me. Why are there so many differences between the condominium statute and the law for homeowners’ associations? You would think it would make sense for the two statutes to closely mirror each other, but there are significant differences. T.M. (via e-mail)
Answer: That is a good question and you make a good point. I support a uniform set of procedural regulations for all types of associations, but there are some legal issues that makes a “one-size-fits-all” statute virtually impossible, at least in Florida.
You are correct that the Condominium Act and the Homeowners’ Association Act do contain numerous differences, some subtle, some rather stark. For example homeowners’ associations are not required to include a detailed agenda on their posted notice for “routine” board meetings, while condominium associations are.
The primary reasons for these differences, in my opinion, are history and politics. Florida’s condominium statute has been in effect for some 55 years. Condominiums cannot exist without an enabling statute because “common law” (law of the courts) does not recognize the ability to hold legal title to airspace. Conversely, HOA’s have been in existence in Florida for the past 50 years, even though the first statute recognizing homeowners’ associations was not enacted until 1992.
Question: I am on the board of directors of my homeowners’ association. I travel quite a bit so I am often out of town for our board meetings. The board is considering a special assessment at our upcoming meeting. I would like to vote because this special assessment is a very visible issue in our community. I have asked for a proxy so that I can cast my vote, but the property manager has told me that I am not authorized to vote by proxy. Is that true? K.M. (via e-mail)
Answer: Yes. The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, specifically provides that directors may not vote by proxy or by secret ballot at board meetings. The only time that secret ballots may be used is in the election of officers.
You might want to look into participating in board meetings through telephone or other remote methods of communication. While not specifically authorized in the HOA statute as it is for condominiums, I am of the opinion that a director may legally participate in board meetings through telephone, real-time videoconferencing, or similar real-time electronic or video communication. Remote participation is legally treated the same as if the director were physically present at the meeting.
While directors are authorized to participate remotely, there is no requirement that a board allow its members to do so, though the vast majority do. If your board does want to allow its members to call into meetings or otherwise participate remotely, the board must ensure that those who participate remotely can hear and be heard at the meeting.
Question: I recently received a notice from my condominium about an amendment to our declaration of condominium. The notice stated that this amendment could be approved by a two-thirds vote of the members who attend the meeting. This strikes me as ridiculous. A quorum for a meeting in our association is only half the members; therefore a very small number of people could approve an amendment that would affect everybody. Is this legal? F.P. (via e-mail)
Answer: Probably. The Florida Condominium Act provides that if the declaration fails to contain a method of amendment, it can be amended, as to most matters, by the approval of not less than two-thirds of all unit owners. Certain amendments, such as changing the percentage of common expenses, or changing the boundaries of the units, can only be amended by approval of all unit owners. Therefore, the starting point would be to first look to the amendatory language in your declaration.
Question: I am an owner in a “55 and over” condominium community. The board refuses to provide copies of legal opinions about how the board should interpret and apply certain provisions of the association’s bylaws. None of these opinions involve lawsuits. Does the board have the right to withhold these opinions? J.D. (via e-mail)
Answer: In my opinion, yes. The Florida Condominium Act addresses access to association’s official records. Generally speaking, the association must make its official records available to a unit owner within five (5) working days after receipt of a written request, and after ten (10) working days, certain penalties can attach. However, the law does not require a condominium association to disclose attorney-client privileged communications, whether verbal or written, to a unit owner. Florida DBPR condominium arbitrators have ruled that the attorney-client privilege exists regardless of the existence of any anticipated or ongoing litigation. I agree with those interpretations. However, the issue has never made its way to the appellate courts in the condominium context.
Topical Currents hosts Joseph Cooper and Bonnie Berman will be joined once again by our own Donna DiMaggio Berger, Esq., as she brings her experience and knowledge to answer listeners’ questions on Wednesday, November 4, from 1 p.m. to 2 p.m. on 91.3 WLRN.
Donna will be discussing topics that can affect all types of community associations including a new law allowing associations to conduct online voting, the importance of updating governing documents, options for using fines as an enforcement tool, and the role of community association managers in a community.
Question: My homeowners’ association is in a dispute with our prior law firm regarding the payment of legal fees. We have not been able to come to a settlement and are currently scheduled to go to trial later this year. Our question is can the winning party recover their attorneys’ fees and costs in such a dispute? C.D. (via e-mail)
Answer: It depends. In America, unlike many other countries, there is no inherent right for the winning party in a lawsuit to recover their attorneys’ fees from the loser. The right to recover attorneys’ fees must arise either from the terms of a contract or be granted by statute.
For community associations, provisions of Chapter 718 for condominiums, Chapter 719 for cooperatives and Chapter 720 for homeowners’ associations, all provide that the prevailing party, in a dispute between the association and an owner, is entitled to recover their reasonable attorneys’ fees and costs. Further, most governing documents for community associations also provide that the prevailing party in a dispute between the association and an owner is entitled to recover their attorneys’ fees and costs. However, the statutes do not generally grant an association the right to recover attorneys’ fees and costs in disputes that do not involve an owner.