Answer: Section 718.112(2)(d)4.b of the Florida Condominium Act provides that within 90 days after being elected or appointed to the board, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the condominium documents and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. In lieu of this written certification, within 90 days after being elected or appointed to the board, the director may submit a certificate of having satisfactorily completed an educational course from a provider who has been approved by the State. Those so-called “board certification” courses are typically put on by law firms or management companies, usually free of charge. You can find a list of approved providers on the website of the DBPR at http://www.myfloridalicense.com/dbpr/lsc/condominiums/CondoEducation.html
Question: Our neighborhood does not have a homeowners’ association, but we do have a voluntary neighborhood civic association. There is a dispute as to whether renters should be allowed to be members of the association, and serve on the board. What do you think? J.B. (via e-mail)
Answer: I assume your civic association is set up as a not-for-profit corporation. As such, it is governed by Chapter 617 of the Florida Statutes, known as the Florida Not-For-Profit Corporation Act. Section 617.0601(7) of that statute states that where the articles of incorporation expressly limit membership to property owners within specific measurable geographic boundaries, no property owner may be denied membership. However, the law does not extend a similar protection to renters. Therefore, I believe the articles of incorporation could prohibit non-owners, including renters from serving on the board.
As far as my personal opinion, I see no good reason why a renter should be precluded from participation in a voluntary civic association, including board service, if they are willing to donate their time and talent.
Answer: If your community is a condominium, then the addition of a new pool heater (assuming the pool is currently unheated) would likely be considered a “material alteration or substantial addition” to the common elements. Section 718.113(2) of the Florida Condominium Act states that there shall be no material alterations or substantial additions to the common elements except in the manner provided in the declaration of condominium. If the declaration of condominium is silent, then the law requires approval of seventy-five percent of all voting interests (there is typically one voting interest per unit).
In the homeowners’ association context, the law is a bit murkier. There is no “material alteration” clause in Chapter 720 of the Florida Statutes, commonly known as the Florida Homeowners’ Association Act. Rather, most attorneys seem to agree that an HOA board’s authority to improve common property is subject to the authority granted in the governing documents. If the documents allow the board to “improve” common property, then such language might be sufficient.
In either case, given the consequences of a potential legal challenge, your board should consult with the association’s legal counsel. This should be a fairly straightforward question for them to answer.
Question: Our homeowners’ association wants to ban smoking at the outdoor pool. Our governing documents do not address smoking, but they do give the board rulemaking authority regarding the use of the common areas. Does the board have the authority to institute a rule banning smoking at the outdoor pool given that the Florida Clean Indoor Air Act only prohibits smoking in “enclosed indoor workplaces”? J.G. (via e-mail)
Answer: As I have noted in earlier columns, and as you correctly note, the Florida Clean Indoor Air Act does not apply to outdoor common areas, such as parking lots or open swimming pool areas. However, it is my opinion that if the board of directors is granted rulemaking authority over the common areas, which you have indicated is the case with your Association, the board can adopt a rule banning smoking in outdoor common areas as well.
Question: I own a home in a homeowners’ association with a five member board. Currently there is a vacancy on the board and the board is in the process of appointing someone to fill that vacancy. The board is currently made up of four women and we understand that they intend to appoint a fifth woman to the board. Isn’t this discrimination if they will not appoint a male member to the board who has volunteered and offered to serve on the board? D.V. (via e-mail)
Answer: Probably not. For a homeowners’ association, the requirements for board service are contained in Section 720.306(9)(a), which states that “all members of the association are eligible to serve on the board of directors …” Further, any member is entitled to nominate themselves at the meeting where the election is held or in advance if the election process allows for nominations in advance of the meeting. The statute goes on to provide that an individual who is more than ninety days delinquent in the payment of any monetary obligation to the association is not eligible for board membership nor is any person who has been convicted of any felony and who has not had their civil rights restored for at least five years as of the date at which they seek election to the board. Otherwise there are no other statutory requirements concerning the composition of the board. Accordingly, it would likely not be discriminatory for the current members of the board to refuse to nominate any specific person to a vacancy even if doing so would constitute a board made up of entirely men or women or otherwise.
With regard to a condominium association, Section 718.112(d), provides that any unit owner in a condominium is eligible to serve on the board, unless they have been determined to be ineligible to serve, either due to delinquency in the payment of any monetary obligation to the association, removal or suspension by the Division pursuant to the Condominium Act, or they have been convicted of a felony and have not had their civil rights restored for at least five years.
Otherwise, there is no provisions in either the Homeowners’ Association Act or the Condominium Act, that mandate any specific composition of the board of directors.
Question: I purchased a property at a tax deed sale in July 2013. The notifications were sent out to all concerned parties by the county. When I informed the association that I wanted to set up an account to start paying the new dues, they sent me a collection notice for all the past due assessments. It is my understanding that previous non-governmental liens do not survive a tax deed sale. R.L. (via e-mail)
Answer: On September 20, 2013, the District Court of Appeal for the Second District (which includes Lee and Collier Counties) provided the answer in a case entitled Cricket Properties, LLC v. Nassau Pointe at Heritage Isles Homeowners Ass’n, Inc. The appellate court ruled that any lien for unpaid assessments by a community association does not survive the issuance of a tax deed. The court held that Florida Statute Section 197.573, while providing that covenants and restrictions running with the land survive a tax deed sale, any lien created by those covenants to secure unpaid assessments does not.
The court also stated that the language of Section 197.573 overrode language in Section 720.3085 of the Florida Homeowners’ Association Act that provides that a purchaser of property in a HOA is jointly and severally liable for all past due assessments with the previous owner because a tax sale is not a transfer of title, but actually creates a new deed in the name of the purchaser. In short, a tax deed sale wipes out all liens and encumbrances, including liens securing unpaid assessments, but does not otherwise exempt a property from the community’s governing documents, including the duty to pay assessments after taking title.
Question: We own a unit in a small condominium association. There are 20 units and we have a board with three directors. However, there is a concern that at the next annual meeting the three directors who are currently serving will not seek re-election and no one else wants to serve on the board. What happens when no one wants to serve on the board of directors of a condominium association? D.K. (via e-mail)
Answer: Yours is not a unique problem. We see many associations have member apathy in voting in elections as well as a lack of interest in running for the board. As such, it is not uncommon to see individuals serve on the board of their condominium association for a number of years because no one else wishes to run. Your proposed scenario is rather extreme, in that you are asserting that there may come a point when no one wishes to serve on the board.
That being said, the Florida Condominium Act does address what happens under the circumstance when a condominium association cannot constitute a board of directors. Specifically, Section 718.1124, Florida Statutes discusses what happens when an association fails to fill vacant seats on the board of directors with sufficient individuals to constitute a quorum of the board. If an association fails to seat enough board members to constitute a quorum, any unit owner is entitled to petition the circuit court in the county where the condominium exists for the appointment of a receiver to manage the affairs of the association. Once the petition for the appointment of a receiver is filed, if the association does not fill the vacancies on the board within thirty days of filing the petition, the unit owner may proceed with a hearing on the petition in order for the court to appoint a receiver. Once a receiver is appointed, he or she has the authority to manage the affairs of the association. Further, once appointed, the association is responsible for paying the salary of the receiver and all related court costs and attorney’s fees. As such, having a receiver appointed can become very expensive for the association.
Given the seriousness of having the court appoint a receiver to oversee the affairs of the association, it is rather unusual for the situation to get that bad. However, your concerns are well founded, in that many associations have persistent trouble in obtaining volunteers who are willing to serve on their boards. The best solution is to seek to involve other unit owners in the operation of the association and educate them as to how important it is for all owners in the association to participate in the governance of the association to the benefit of everyone.
After years of little to no activity, new condominium construction is now red hot. There are reportedly 40 new condo towers planned for the Miami downtown area alone. Our feature article, Top 10 Questions Regarding Condominium Construction Defects is a must-read for new purchasers.
As explained in our CALL Alerts and our 2013 Legislative Guides, new statutes are in place to protect design professionals from liability. If there is a construction project in your future, please read Contracting with a Design Professional Requires New Considerations.
We often hear of projects designed to increase energy efficiency or reduce utility costs, but what assurances are in place? We address some important aspects of contracting for these projects in Promises, Promises …. “Green” Warranties in Construction Contracts.
Question: Our condominium documents state that we can rent our units for a one month minimum. Some owners believe if they rent for one or two weeks in a month, and they do not rent for the rest of the month, they are complying with the documents. What is your opinion on this matter? J.G. (via e-mail)
Answer: Minimum lease term restrictions are common because many condominiums want to avoid having the “hotel-like” atmosphere that comes with short and frequent rentals. In fact, if a condominium permits rentals of less than thirty days more than three times per year, the condominium is considered a “place of public lodging”, and can be subject to various laws pertaining to “public accommodations”, including Chapter 509 of the Florida Statutes, which is often referred to as Florida’s “hotel/motel” law.
In your example, if the tenant only stays for two weeks, and no other tenants occupy the unit for the next two weeks, that scenario might be seen as even better than tenants being present for the full 30 day rental. However, some people believe that there is a significant difference between the types of use that a two week tenant makes of a unit as opposed to a monthly tenant.
I assume the belief is that a two week tenant is likely on vacation and will “live it up” all 14 days, and nights, while a monthly tenant may be more likely to act more like a resident, who keeps traditional hours and treats the property with care and respect.
Further, if the unit owner is allowed to resume occupancy for the remaining half of the lease, then the community is burdened with both a short-term rental and full occupancy for the entire 30 day period, albeit by the owner for the remaining lease term. But clearly in that case, the rental restriction is effectively rendered useless.
In my opinion, if an owner submits a proposed “monthly” lease, and the rent to be paid is clearly below market value, or there are other terms or information indicating the intent to actually lease for less than a month, the association (assuming it has lease approval rights) can disapprove that lease as a sham transaction. There may be valid reasons for a reduced rate, so some investigation may need to take place before an official disapproval is given. Proving the lease is a sham beforehand might be difficult. But we have had cases where it is discovered that the owner is advertising less than monthly rentals on vacation websites. In some cases, “weekly” and even “daily” rental rates are posted. That makes it easier for the association to disapprove an apparent sham lease term.
Finally, I believe it is reasonable and consistent with your rental restriction to adopt a restriction that nobody, not even owners, can occupy a unit if the tenants leave before the lease ends. Legal counsel should be consulted as to whether this can be accomplished through a board-made rule, or whether a document amendment is required. You certainly cannot stop any tenant from leaving early, but you can restrict the use of the unit consistent with the restrictions in the declaration of condominium.
The Broward County Commission has approved a new way for home (and business) owners to fund energy saving retrofits. The County adopted the Property Assessed Clean Energy (PACE) program, which has been approved and utilized in many communities across the country. PACE programs allow property owners to pay for the cost of energy improvements and wind mitigation measures to their homes or businesses through a voluntary assessment on their property tax bill. This assessment stays with the property when it is sold since the new owner continues to receive the benefit and cost savings of the improvements. Private companies provide the financing, and the county collects the money. Financing will be available for things like solar panels, LED lighting, HVAC, insulation and wind-resistance improvements.
There is also help for residents to obtain rebates and conserve water when they purchase a new, high-efficiency toilet. The Broward Water Partnership offers rebates through its Conservation Pay$ program. More than $344,000 in rebates has been awarded for replacing more than 3,700 outdated, water- guzzling toilets. There are opportunities to receive free low-flow faucet aerators and showerheads as well. Broward County estimates greater potential water savings when replacing old appliances and fixtures, even as much as 70 – 90 percent, depending on the device.
If you have an interest in making energy efficiency improvements, don’t forget to check with your municipality as well. For example, the City of Lauderhill offers Interest Free Energy Appliance loans through a municipal revolving loan program. Loans from $400 to $2,000 are available to homeowners purchasing new Energy Star certified appliances from eligible retailers. Tankless water heaters, solar photovoltaic systems and solar water heating systems are also eligible for the loan program. Homeowners have up to two years to repay the loan – hopefully funding the purchase with savings.
Will this work for the owners in your community association?