Answer: Interesting question. The Florida Condominium Act was amended approximately twenty years ago to state that when a unit is leased, a tenant “shall have all use rights” in association property and those common elements otherwise readily available for use generally by unit owners. That law would seem to apply here. The statute also provides that unit owners can retain use rights in such property, if the tenant waives those rights in writing. This law never made sense to me, since a unit owner who is renting his or her unit would still need to park their vehicle on the property to use the amenity, security monitoring frequency could be doubled, and this part of the law has occasionally proven to be a nightmare to administer.
While the statute does permit an association to adopt rules to prohibit dual usage by a unit owner and his or her tenant, that does not really solve your problem. Although I do not believe any appellate court in Florida has ever been called upon to construe the statute, I often hear it referred to as the “no discrimination against tenants” statute. Parenthetically, there are decisions from the state regulatory agency that provide that an association can “discriminate” against tenants with respect to the use of units, particularly “no pets for tenants” provisions properly amended into the condominium documents.
As to your specific question, and based upon the general common law rule that the lease of property carries the full “bundle of rights”, combined with the language of the statute, I believe that treating tenants differently than owners in accruing points to obtain preferred tee times would place the association on a shaky legal footing, at best.
Question: Is there a rule regarding how much money an HOA is allowed to spend buying a foreclosed lot? Also, how much can an HOA spend paying the past due real estate taxes owed on a lot if obtained in its own foreclosure action?
Answer: Section 720.3085(1)(f) of the Florida Homeowners’ Association Act states that an association may purchase a parcel at its foreclosure sale, and hold, lease, mortgage, or convey the parcel. The statute does not provide a rule about the amount of money that can be spent.
However, it is rare for an association to bid more than its “judgment credit”, meaning that the association would normally stop bidding when a third-party bidder exceeds the amount of the association’s judgment, and the association would be paid in full for its unpaid assessments. There may be rare cases where a different approach may be justified (bidding more than the judgment credit amount), and in such cases, the association’s attorney should be consulted in advance to determine if there are any limitations on acquiring title to a parcel in the community outside of the normal foreclosure process.
As to your second question regarding payment of taxes, the statute is silent on the point. It seems self-evident that any corporation has the power to expend its resources to protect and preserve any asset it owns, which would include paying delinquent taxes on a foreclosed parcel. I do not believe I have ever seen governing documents that would limit the authority of an HOA to pay taxes on property it owns, but I suppose a strictly drafted expenditure limit could come into play. Your association’s attorney should also review this matter in the context of your specific situation.
Question: The board of our condominium association recently held an “executive session” to discuss a “personnel matter.” The “recording secretary”, who is an employee of the association, was present to take notes. Two of the directors objected to an employee being present and were advised that Florida Statute 718 allows for the recording secretary to be present. I am curious if indeed this is allowed by that statute. C.I. (via e-mail)
Answer: The condominium statute does not address this issue. Pursuant to the Florida Condominium Act, closed board meetings with legal counsel to discuss pending or proposed litigation, and closed meetings to discuss “personnel matters”, are permitted.
A condominium association is usually a not-for-profit corporation. Corporations, and members of corporation boards, customarily rely upon agents and employees of the corporation to assist with the administration of the corporation. Such agents (e.g., managers, attorneys, or accountants) and employees often have significant involvement in the association’s affairs.
Some express the view that permitting non-board members (other than legal counsel) to be present at closed meetings compromises the intended confidentiality of those meetings. In a 1994 case, the Florida Supreme Court stated that because the nature of a corporation differs significantly from an individual person, the attorney-client privilege will also “differ in its application to the corporation and to the natural person.” The Court noted that “a corporation can act only through its agents.”
Agents and employees of the association have a duty to act for the benefit of the association, and not use confidential information obtained from the association to the detriment of the association. In a 1998 decision, Florida’s Fourth District Court of Appeal held that the attorney-client privilege “extends to the necessary intermediaries and agents through whom such communications are made.”
Based on the foregoing, while the Condominium Act does not directly address the issue you have raised, I believe the more appropriate view of the law is that the presence of an agent or employee of the association at a closed meeting does not compromise the confidential nature of the meeting. However, this precise issue, at least in the association context, has not been addressed by Florida’s courts, and it is not directly addressed in the statute.
Question: Our declaration of condominium states that parking spaces shall be authorized only for the “parking of private passenger automobiles”, and may not be used to park trucks, campers, trailers or “any other type of vehicle.” When the building was built over 30 years ago, a bicycle rack was placed on the parking lot for the parking of owners’ pedal-driven bikes. Do we need to amend the declaration to allow bicycles in the parking lot? M.R. (via e-mail)
Answer: Your question highlights the reality that written language often does not convey a perfect understanding of what the writer intended. If the meaning of a provision is unclear, the drafter’s intent, if it can be determined, will control.
In your case, the dictionary definition of the word “vehicle” clearly includes bicycles. Further Sections 316.003(2) and (75) of the Florida Statutes would likewise indicate that a bicycle is a “vehicle.”
Since the developer drafted the documents and installed a bicycle rack in the parking lot, those facts, together with the continued use of the rack for 30 years, would seem to support the conclusion that the drafter of your declaration did not intend to prohibit bicycles in the parking lot, at least if kept in the bike rack. However, that is arguably what the declaration says. An alternative interpretation is that the prohibition only applies to “parking spaces”, and not the “parking lot” as a whole.
I agree that the most prudent way to resolve the issue is to amend the declaration. But that is not always easy, since a membership vote is likely required.
Many declarations also include a provision empowering the board to resolve conflicts and ambiguities. If your declaration of condominium has such a provision, hopefully a well-reasoned board conclusion on this issue would be enough to resolve any dispute.
Attorney Donna DiMaggio Berger will be a guest on the “Condo & HOA Hour” on radio station KKNW 1150 AM Wednesday, January 21, 2015. Ms. Berger will provide commentary on national trends in the community association industry and discuss how technology is affecting HOAs and condos, and how volunteer board members are getting the education necessary to effectively lead their communities. The show mixes education, entertainment, guests, features, and call-in conversations.
Ms. Berger is a well-known condominium attorney and shareholder in Becker & Poliakoff’s Community Association Law Practice. She is active on social media and authors the popular “Community Association Law” blog (www.CommunityAssociationLawBlog.com) on timely topics and issues of interest for common interest ownership communities. She has created and manages the popular Condo and HOA Law & Living Group on LinkedIn and companion Condo and HOA Law & Living Group at Facebook, two of the most active social networking groups for community association residents and professionals. She also shares news and views on community association law and living on Twitter at @CondoandHOALaw.
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Question: Is there any statutory requirement that board members sign for certified letters that are sent to them on behalf of the association? R.B. (via e-mail)
Answer: Neither Chapter 720, the Florida Homeowners’ Association Act, nor Chapter 718, the Florida Condominium Act, specifically discuss a board member’s obligation to accept or sign for certified mail. However, a board member who is receiving mail on behalf of the association, would, in my opinion, be obligated to accept certified mail consistent with his or her fiduciary duty to the owners and the association.
Both statutes anticipate that members of the association will correspond with the association by certified mail in some instances. For example, Section 718.112(2)(a)2., Florida Statutes provides specific timelines for responding to a unit owner’s “inquiry” received by certified mail. Similarly, Section 720.303(5)(a), discusses the timeline for the association to make official records available when a written request to inspect the records has been received by certified mail, return receipt requested.
2015 Legal Update (LU1) and
Provider #0000811, Course #9627311, 2 CEU Credits
Condo Construction Projects Gone Wild!
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David Rogel, Esq.
Rosa de la Camara, Esq.
2015 Legal Update
Provider #0000811, Course #9627311, 2 CEU Credits
In addition to sunshine and tropical storms, in Florida we are guaranteed each year to see changes to the laws governing Florida’s more than 60,000 community associations. Many of these changes come with penalties for failing to implement them so it is crucial that volunteer directors and managers know and understand what takes place in Tallahassee each year which can impact their communities.
The law firm of Becker & Poliakoff is here to help. By participating in our FREE 2015 Legal Update you will learn how to implement all of the laws passed during the 2014 Legislative Session impacting Condominiums, Cooperatives, Homeowner Associations, Timeshares and the community association management profession. Our class is designed to provide community association managers and volunteer board members with a working knowledge of the changes to the law to assist in ensuring compliance within their community associations.
Condo Construction Projects Gone Wild!
Provider #0000811; Course #9626710, 2 CEU Credits
This class is designed to educate board members and community association managers about issues and pitfalls associated with community association renovations, maintenance and repairs to association property.
It addresses various issues including those associated with the following:
- Certificates of Insurance – Additional Insured Status & the importance of Builders Risk Insurance.
- Requirements to pass assessments for improvements and restrictions, such as membership votes required to take action and document interpretation.
- Scope of warranties and pitfalls associated with them. What to watch out for to avoid problems when enforcing warranty protection.
- The importance of retaining skilled consultants such as engineers and others when performing remedial work on association property.
- Hurricane Contracting and common issues arising in the aftermath of a hurricane.
Saturday, February 7, 2015
9:00 AM – 1:00 PM
Registration starts at 8:30 AM
Hawk’s Cay Resort
61 Hawk’s Cay Blvd.
Duck Key, FL 33050
For more information, please contact Mikel Alvarez at:
305.262.4433 or email@example.com.
Breakfast will be served.
There is no charge to attend, but seating is limited.
Participants must be registered in advance to reserve a seat.
Question: Our condominium declaration contains a minimum lease term of one month. A unit owned by a business allows free use of their unit on a weekly basis as a “perk” to their employees. Is the weekly use of the unit by employees classified as a rental and thus a violation of our declaration? F.J. (via e-mail)
Answer: The answer to your questions will primarily depend on the language of your governing documents. Many governing documents will define the terms “guest” and “tenant” to clarify the difference between a “lease” and a “guest occupancy.” A common standard utilized is whether the occupancy involves “consideration”, which is a legal term for something of value being exchanged, though not necessarily money. If proper definitions are contained in the declaration of condominium, use of a unit by an employee arising solely out of an employment relationship will likely be “consideration”, which would trigger the applicable leasing restrictions.
I ran this by Steven Brettholtz, CPA, Managing Partner of Myers, Brettholtz & Company, a Fort Myers-based accounting firm well known for the provision of accounting services to condominium associations. Brettholtz points out that IRS Publication 535 provides that employers can generally deduct amounts they pay to employees as “awards”, as deductible business expenses. “Achievement awards” are included amongst employer-deductible expenses. IRS Publication 15-B dealing with employee fringe benefits, notes that while “achievement awards” are often not subject to federal tax withholding, the exclusion does not apply to “intangible property such as vacation [or] lodging.” While the intricacies of federal tax regulations may not be the determinative factor, they seem to suggest that such uses are considered to involve tangible economic benefits.
Lease and occupancy restrictions are among the most highly-litigated issues for condominium associations. Associations with clear and unambiguous restrictions have the best chance of effectively enforcing these provisions. If your board has not done so, it would be wise to contact the association’s attorney and determine if your documents could benefit from some fine-tuning.
Question: We own a condominium unit which we rent out. Our tenant reported a water leak, and so we called a plumber. The plumber concluded that the leak was not coming from our unit, and advised us to notify the association. The association’s management company hired someone to look for the source of the leak, but they could not find the source either. Now the association is trying to charge us $300 and is threatening to place a lien on our unit if we do not pay. Do you feel that this bill is our responsibility? S.L. (via e-mail)
Answer: Condominium documents often include provisions that allow the association to charge unit owners for work performed by the association on portions of the condominium property that are the maintenance, repair and replacement responsibility of the unit owner. Usually, reasonable notice and an opportunity for the owner to first complete the work is required. Some documents provide that such charges can be collected in the same manner as assessments, which would include the right to place a lien on the unit.
In the absence of appropriate documentary authority, the Florida Condominium Act only provides authority for an association to perform work on behalf of a unit owner and place a lien on the unit when the association performs work that is the unit owner’s responsibility after a “state of emergency” has been declared, or in certain cases where repair work is done on “abandoned” units.
The main question is whether the work performed by the association to try to find the source of the leak is properly chargeable to you in the first place. Based on the facts as you have presented them, I do not believe this cost is properly chargeable to you. You hired, and presumably paid, your own plumber to make sure the leak was not coming from your unit. Similarly, the association has an obligation to protect the common elements, and other units, and chose (appropriately so) to hire its own plumber to investigate a reported water leak.
Unless the leak was coming from a pipe or fixture that is your responsibility, I see no basis for you being liable for the association’s plumber’s bill any more than the association is liable for the charges from your plumber.