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Florida Condo & HOA Legal Blog

News & Updates on Condo & HOA Laws & Legislation in the State of Florida

Condo Board Meetings Cannot Be Adjourned Past 90 Day Timeframe

Posted in Meetings, Operations, Reader Q&A

iStock_000005990447XSmallQuestion: Is there a limit on the amount of time the association can hold open voting for amendments to our condominium documents or can the board hold the voting open indefinitely until it receives enough “yes” votes to approve the changes? D.N. (via e-mail)

Answer: Pursuant to the Florida Condominium Act, a proxy is valid for the meeting for which it is given, and any lawful adjournment thereof. However, a proxy is only valid for ninety days from the initial date of the meeting. Accordingly, if there are adjourned meetings in order to garner additional support, those adjournments can only occur for a ninety-day period from the date of the first meeting. Errors in adjournments are one of the most common problems I see with amendments. I recommend that the following procedures be followed:

  • If a quorum is established, but there are not enough votes to consider the amendment, all business unrelated to the amendment can still be conducted. The chairman should explain to the members that the association has not obtained sufficient voter input to properly address the amendment, and request that the meeting be adjourned to permit additional members to submit proxies.
  • A motion to adjourn should be made to adjourn the meeting to a specific date, time, and place. This motion should be seconded, and discussion limited to the motion to adjourn.
  • The motion should be voted upon. The Board designee holding proxies given to the association may vote those proxies in favor of the adjournment if “general powers” have been given to the association.
  • For those people who came to the meeting in person, they should be given a limited proxy and asked to fill it out, in case they cannot come back to the meeting when it is re-started. If the owner can come back, they can always “revoke” their proxy, so it is best to ask all of the owners who attend the initial meeting in person to leave proxies.
  • When the meeting is reconvened, a motion should be made to approve the amendments as presented, duly seconded, and voted upon. Additional proxies received after the first meeting can be added to the count, as well as the votes of any owners who attend the re-convened meeting in person.

Director Can Serve on More Than One Condo Association Board

Posted in Board Eligibility, Reader Q&A

Question: My condominium association is electing new directors. One of the candidates running for the board is currently the president of another association in our development. Can this individual serve on both boards at the same time?  M.P. (via e-mail)

Answer: Yes. The Florida Condominium Act specifically provides that any unit owner or “other eligible person” may run for the board. The Condominium Act further provides that there are only three instances in which a unit owner is not eligible to run for the board: (1) when he or she has been suspended or removed from office by the Division of Condominiums, Timeshares and Mobile Homes; (2) when he or she is delinquent in the payment of any monetary obligation due to the association, and (3) when he or she has been convicted of any felony in Florida, or has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, unless such felon’s civil rights have been restored for at least five years as of the date such person seeks election to the board.

Board Can ‘Cool Down’ An Owner Suggestion For An Improvement To Association Property By Saying No

Posted in Reader Q&A

153697798Question: We have central air conditioning in our entire clubhouse, including the workout room. However, one resident insists that a separate wall air conditioner should be added to the workout room. Does the board have to do this, or is seventy-five percent ownership approval required for a “material alteration”? F.S. (via e-mail)
 
Answer: If the board is not interested in adding the window air conditioning unit, it should just say no. I do not think a window air conditioner would be considered a “material alteration”, because it is not an improvement to the property but rather it is “personal property”, which the board is generally empowered to acquire and dispose of.

Consumption of Alcohol at Events Can Pose Risks for Associations

Posted in Insurance, Liability, Operations, Reader Q&A

100088877(1)Question: Our association permits the consumption of alcoholic beverages at certain events. What is our liability? T.S. (via e-mail)
 
Answer: That is a good question, there is no clear guidance in either statutory law or appellate case law.

Generally speaking, under what is often called Florida’s Dram Shop Act (Section 768.125 of the Florida Statutes) a person who sells or furnishes alcoholic beverages to a person of lawful drinking age does not thereby become liable for injury or damage caused by or resulting from the intoxication of such person. However, a person who willfully and unlawfully sells or furnishes alcoholic beverage to a person who is not of lawful drinking age, or who knowingly serves alcoholic beverages to a person who is “habitually addicted” to alcohol, may become liable for injury or damage caused by, or resulting from, the intoxication of such minor or person.

While an association probably can limit concerns over service to minors, I am not sure how one determines whether someone is “habitually addicted” to alcohol.

From a risk management perspective, the most important thing for the association to do is to make sure that there is insurance coverage available for any loss that might arise out of alcohol being furnished at, or consumed upon, the community’s premises. It is my understanding that the association can obtain “host liquor liability” riders for its operations generally, and sometimes on an event-by-event basis. This should be discussed with the association’s insurance agent.

Bylaws Can Authorize Pay For Condo’s Officers

Posted in Reader Q&A

Question: The officers of our condominium association (president, vice president, secretary, and treasurer) are all paid, and have asked for a pay raise this year. Is this legal?  I thought this was a volunteer job under Florida law?  M.I. (via e-mail)

Answer: According to Section 718.112(2)(a)1 of the Florida Condominium Act, officers serve without compensation unless otherwise provided in the bylaws. Therefore, the bylaws can permit officers to be paid.

In my experience, very few associations pay their officers, but some do. There are some issues that could arise when officers are paid, including whether a higher duty (more liability) exists than is the case for volunteers. There is also a question of whether the same volunteer immunity laws would apply. However, if authorized by the bylaws, it is not illegal for association officers to be paid.

Legislative Session Update Week 6 — CALL Alert for April 11, 2014

Posted in CALL Alert, Legislation, Service Animals/Emotional Support Animals

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As week 6 comes to an end, everyone is looking forward to a “mini-break” in the action next week.  The House and Senate have decided not to meet next week because of the Passover and Easter holidays.  However, we all know that it’s not really a break and there will be much strategizing and behind the scenes action going on as we gear up for the last two weeks of session.

The 2014 CALL Tracking List on the CALL website has been updated as 4/11/14:  www.callbp.com. There you will find an updated summary of the bills of interest and also their status.

The following is an update on the bills that continued to make progress this week:

Service Animals and Emotional Support Animals:  As mentioned in the CALL Alert of April 8, 2014, CALL reached an agreement with the House and Senate sponsors and the disability rights advocacy groups to remove all references to emotional support animals from the bill.  Those amendments were approved in the House State Affairs committee meeting on April 11, 2014.  The bill now heads to the House floor.  Click here to see the most current version of the bill, which now is limited to “service animals” only.  Nothwithstanding, there are federal laws that address other types of assistance animals (including emotional support animals).  Therefore, if your association receives a request for a service animal, emotional support animal or other assistance animal, you should always involve your association attorney so that they can properly advise you on the law and the particular request.

The Senate companion bill, SB 1146 by Sen. Altman, was scheduled to be heard in its second committee of reference, Senate Community Affairs, on Tuesday, April 8, but it was not considered.  As a result, the liklihood of the bill passing is diminishing, as it would still have to be approved in two committees before it can be heard by the full Senate.

HOA Meetings:  SB 1450, by Sen. Simpson, requires that all HOA meetings be held at locations which are accessible to physically handicapped persons, but only if a request is made by a physically handicapped person who is entitled to attend the meeting.  The bill was approved by the Senate by a vote of 40-0, but does not have a House companion.  We will continue to monitor it.

Community Association Bill:  As mentioned in the CALL Alert of April 8, 2014, the sponsors of SB 798 and HB 807, have agreed to conform their bills to amend Chapter 718 to state that the association is not considered a “previous owner” when it takes title to a delinquent parcel through foreclosure or by deed in lieu of foreclosure.  The intent is to allow the association to demand past due assessments from the owner that takes title to the property after the association.  This language was added last year in Chapter 720 (dealing with homeowners’ associations), but it is not currently in Chapter 718 (dealing with condominiums).  The provision in SB 798 that would have allowed the association to recover interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process from purchasers (limited to 10% of the winning bid if at a foreclosure sale) will be removed from SB 798 as a compromise with the sponsors and stakeholders.  We expect that SB 798 will be approved in its last committee of reference, Appropriations, when the Legislature returns from the Passover and Easter holidays (Week 8).

CAMs/UPL:  SB 1466 by Sen. Lee and HB 7037 by Rep. Spano add a number of activities to the definition of “community association management,” including, but not limited to, collecting amounts due the association prior to the filing of a civil action, completing forms related to the management of a community association that have been created by statute or by a state agency, drafting letters of intended action, calculating and preparing certificates of assessments, responding to requests for an estoppel letter, negotiating monetary or performance terms of a contract subject to approval by an association, and drafting pre-arbitration demands.

As mentioned in the CALL Alert of April 5, 2014, HB 7037 has been approved in all committees of reference and now heads to the House floor.  SB 1466 was approved in Senate Judiciary and now must only be approved by Appropriations before heading to the Senate floor.  The Senate bill includes a liability provision that would make a CAM liable for monetary damages if the actions of the CAM constitutes a criminal violation; constitutes a transaction from which the CAM derived a personal benefit; 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.  This liability language will likely not be the final version, as the stakeholders are continuing to negotiate this issue.

Vacation Rentals:  HB 307 by Rep. Hutson was approved in its last committee of reference, Regulatory Affairs.  HB 307 prohibits a local government from prohibiting vacation rentals or regulating the duration of vacation rentals, but would presumably allow other types of regulation.  There was an attempt to amend HB 307 to prohibit a local government from restricting a use on a vacation rental which is not restricted in non-vacation rental property. However, the amendment failed.  The companion bill, SB 356, has already passed the Senate and is “in message” to the House.  SB 356 is different and allows local governments to limit the duration of vacation rentals to a minimum of 7 days.  The differences will have to be worked out on the floor of the House and Senate.

Non-Residential Condominiums:  HB 425 by Rep. Rodriguez (J.) and SB 440 by Sen. Altman, Relating to Condominiums, exempt “non-residential” condominiums from certain provisions of Chapter 718.  SB 440 was approved 40-0 by the Senate and will be sent to the House for approval.

Enjoy the holidays and feel free to email me (ygoin@bplegal.com) if you have any questions about the legislation.

Attempting To Change Assessments In A Condominium Can Be An Almost Impossible Task

Posted in Assessment Collection, Owner Payment Responsibility, Reader Q&A

480286093(1)Question: I recently purchased a unit in a condominium community. Half of the units are two-bedroom units and half are three-bedroom units. However, assessments are shared equally. I do not think I should have to subsidize insurance, repairs, and maintenance for the larger units, as I own a two-bedroom unit. I would like to bring this up for a change. What should I do? T.S. (via e-mail)
 
Answer: You need to start by reviewing your declaration of condominium. It should set forth the process by which proposed amendments can be initiated. Typically, amendments can be initiated by a petition from some percentage of the unit owners, or by the board of directors.

Under Florida law, assessments can only be charged equally (all units pay the same) or based on square footage (often called weighted). The developer of your condominium apparently chose equal assessments.

Pursuant to Section 718.110(4) of the Florida Condominium Act, the manner of sharing assessments cannot be changed, unless otherwise provided in the declaration of condominium as originally recorded, except by approval of one hundred percent of all unit owners and lien-holders (including mortgage holders). Therefore, unless your original declaration provides for otherwise (and I do not think I have ever seen such a clause), you will need one hundred percent approval of all owners to change from equal assessments to weighted assessments. The chances of that happening seem pretty slim.

Community Update 2014, Volume 3

Posted in Community Update

Congratulations to all the condominium, HOA and cooperative communities honored by being selected a finalist for the Florida Communities of Excellence Awards. The 2014 Conference and Awards Gala will be held at the Rosen Plaza in Orlando, Florida on May 2, 2014. There is still ample time to register for this important and educational event featuring Tom Hudson as the Master of Ceremonies and Mark David Jones as the Keynote Speaker. Go to www.communitiesofexcellence.net to register and for more information on details of the event..

In this Issue:

Just the thought of a code violation or dealing with code enforcement officials can be upsetting to community leaders. Our feature article Don’t Shoot the Messenger, offers tips for handling code enforcement issues.

Just who is eligible to serve on your condominium’s Board of Directors? That question is answered in the article Board Eligibility Issues.

Don’t be fooled by those who claim the Division of Florida Condominiums, Time Shares and Mobile Homes doesn’t have any power when it comes to investigations of legal violations. Please Pay Attention to Investigative Demands and learn what happened to one association that didn’t.

Are you familiar with the Tourist Development Tax? Our concluding article discusses the association’s role.

Good News on Community Association Bill and Service Animal Bill — CALL Alert for April 8, 2014

Posted in CALL Alert, Legislation, Service Animals/Emotional Support Animals

I am excited to tell you about new developments on two of the bills that CALL is tracking and actively working on during this legislative session.

First, HB 807, by Rep. Moraitis, will be amended to include language to overrule the Aventura Management, LLC v. Spiaggia Ocean Condominium Association case which was discussed in a blog post from January 23, 2013.  The new language in HB 807 will state that the association is not considered a “previous owner” when it takes title to a delinquent parcel through foreclosure or by deed in lieu of foreclosure.  The intent is to allow the association to demand past due assessments from the owner that takes title to the property after the association.  This language was added last year in Chapter 720 (dealing with homeowners’ associations), but it is not currently in Chapter 718 (dealing with condominiums).  This is an amendment that CALL has been advocating for since the end of last year’s legislative session and we thank Rep. Moraitis for agreeing to include the language in HB 807.  Thanks to Donna Berger for all her hard work and advocacy on this.  She did an outstanding job first convincing Sen. Ring to keep the language in his bill, and then convincing Rep. Moraitis to add it to his bill.

Second, SB 1146 by Sen. Altman, relating to service animals, will be amended to remove all references to emotional support animals, and therefore, the bill will be limited to “service animals” only.  A service animal is different from an emotional support animal in two key ways:  a service animal must be a dog or a miniature horse (per the federal regulations) and a service animal must have training.  Of course, disabled persons and housing providers (including community associations) will have to continue to comply with the federal housing laws and regulations as they relate to emotional support animals.  The amendments are a result of our dialogue with the House and Senate sponsors as well as Disability Rights Florida, an advocacy group for disabled persons.  Also involved in the dialogue and the amendments was Becker & Poliakoff attorney JoAnn Burnett, whose concentrates her practice on fair housing discrimination cases.  We thank the sponsors and the other lobbyists involved for listening to our concerns and making the changes we requested.

These new developments highlight what an amazing team we have at CALL and how all of our expertise and talents work together to accomplish good things for our members in Tallahassee.

I will update you again at the end of the week, as usual.

Condo Board Should Cease Politicking Once Owner Has Voted

Posted in Meetings, Reader Q&A

Knocking on the DoorQuestion: We recently had a vote to amend our condominium documents. The board went door-to-door to get participation from the unit owners. After they had obtained enough proxies to constitute a quorum, the board members then went around and asked the owners who had voted no on their proxies to change their vote to yes. Is this legal? R.V. (via e-mail)

Answer: It is not illegal, but I do not recommend doing this. Although a proxy vote is revocable at any time by the owner who signed the proxy (an owner can “change their vote” up to the call to order for the meeting), I think it will discourage owners to participate if such tactics are used.

Presumably, the owners who voted “no” made the decision they did not support the proposed change, and cast their vote accordingly. At least they voted. While I have no problem with the board “politicking” for amendments before owners vote, it comes close to an abuse of power to pressure people to change their vote once they have cast it.