Question: I am preparing to return to my northern home for the summer and intend to deploy the hurricane shutters on my condominium unit. However, the association is advising me that I cannot deploy my hurricane shutters unless there is a storm warning. Is this permissible? (B.M. via e-mail)
Answer: Since hurricane season began on June 1, this is a timely question. Section 718.113(5) of the Florida Condominium Act provides that each board of directors of a residential condominium must adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include “color, style, and other factors deemed relevant by the board.” The statute does not speak to the issue you have raised.
The courts have not addressed this issue either.
However, there is at least one DBPR arbitration decision (which, technically, does not have the binding force of “law”) that found that a rule that prohibiting the deployment of hurricane shutters except when a storm was “imminent” was unreasonable. However, the arbitrator seemed to indicate that a rule that provided that the association would undertake to deploy the hurricane shutters in the event of a storm might be enforceable.
Some feel that a building being “shuttered up” for extended periods is aesthetically displeasing and may invite those with criminal intent to view the building as an opportunity. On the other hand, it is not necessarily feasible for an absentee owner to be able to assure that his or her shutters are deployed when a major storm is approaching, as things tend to get chaotic during emergency preparations.
Question: I recently sent my homeowners’ association a certified letter listing out five disagreements/questions I had about decisions made by the board. The president wrote back by e-mail and said that they would not answer my questions or address my concerns, but I could inspect the records of the association at my convenience. This is unacceptable. I asked them for answers. Can they legally ignore me? J.C. (via e-mail)
Answer: Probably. Chapter 720 of the Florida Statutes, the Homeowners’ Association Act, provides that homeowners are entitled to participate at member and board meetings, by speaking to all designated agenda items. Homeowners also have the statutory right to inspect and copy official records of the association. However, the law does not contain any obligation for an HOA to respond to member questions, comments or complaints, although it would be highly unusual for an association to completely ignore legitimate owner inquiries.
Conversely, both the Florida Condominium Act and the Florida Cooperative Act provide that if an owner submits a “certified written inquiry” to the association, the association is obligated to “substantively” respond within a certain time-frame, generally thirty days, unless a lawyer’s opinion or Department of Business and Professional Regulation involvement is sought, and then there is additional time. Unless there is some unusual provision in the governing documents for your association creating an obligation for the association to respond to you, the association is probably within its legal rights to ignore you, although being legally right does not necessarily make it right.
Question: Our condominium documents are more than 30 years old. From what I understand, the association membership must take action at some point to make certain that the documents are not extinguished, but I think we might have missed the deadline. Is that the case? If so, does that mean that our declaration of condominium is no longer enforceable? (D.M. via e-mail)
Answer: The Marketable Record Title Act (MRTA) can extinguish recorded covenants and restrictions unless they are found in a “muniment of title” or preserved pursuant to the procedure set forth in the statute. The most common “muniment of title” is a deed transferring a unit from one owner to another. If you can look at the deed and know where to go to find the covenants and restrictions encumbering the property, MRTA will generally not act to extinguish those covenants and restrictions.
Homeowners’ associations governed by the Florida Homeowners’ Association Act normally have to take steps to preserve their covenants and restrictions because the deeds to the individual homes usually do not include a the recording information for the declaration of covenants (a general reference to covenants and restrictions of record is not sufficient). Rather, the legal description in individual deeds usually refers to a recorded plat. If there are no covenants or restrictions or reference to same on the face of the plat itself, the covenants and restrictions are not found in a “muniment of title.”
Conversely, the Florida Condominium Act requires that the legal description for deeds to individual units include specific reference to the public record information for the declaration of condominium. Therefore, every “muniment of title” in condominium unit title transfers will incorporate the declaration of condominium. So, by looking at the deed, you are automatically placed on notice that the property is subject to covenants and restrictions and where those covenants and restrictions are recorded in the public records. Therefore, there is no need to preserve declarations of condominium under MRTA.
There are a few situations in the condominium setting where action to preserve recorded documents encumbering or pertaining to the condominium property should be taken. If there is any question whether your association has documents that should be preserved, you should consult with the association’s legal counsel. The effect of MRTA can be harsh.
If your community requires a prospective lessee to be approved by the association, you will want to take note of a new law that becomes effective on July 1, 2016. In short, the bill requires community associations to process rental applications from service members within 7 days after submission regardless of the time frame provided in your governing documents.
To ensure that your community does not inadvertently violate the new law, your association should consider amending its application to include a question asking whether the prospective tenant is a servicemember as defined in s. 250.01, Florida Statutes.
Specifically, the bill provides:
- If a condominium, cooperative, or homeowners’ association requires a prospective tenant to complete a rental application before residing in a unit within the association, the association must complete processing of the rental application submitted by a prospective tenant who is a service member, as defined in s. 250.01, within 7 days after submission.
- The association must, within that 7-day period, notify the service member in writing of an application approval or denial and, if denied, the reason for the denial.
- Absent a timely denial, the association must allow the owner to lease the unit or parcel to the service member and the landlord must lease the unit or parcel to the service member if all other terms of the application and lease are complied with.
- The parties may not waive or modify the provisions of the law.
- The term “service member” is defined to include any person serving as a member of the United States Armed Forces on active duty or state active duty and all members of the Florida National Guard and United States Reserve Forces.
Question: I live in a condominium. I am an original owner and have lived here for ten plus years. One of the reasons I purchased a unit in this condominium is because they had minimal pet rules. I have two large dogs. The only pet restriction when I bought was a rule in the recorded declaration against tenants having pets. I just got notice that the board imposed a ban on all pets weighing more than twenty-five pounds, including existing pets. This is the first I have heard of this. Since the president of the board doesn’t like me, I predict I will soon be receiving a letter and ordering me to get rid of my dogs. Please confirm for me that this board action is highly illegal and that I can keep my dogs. C.H. (via e-mail)
Answer: Pet issues are amongst the most highly contentious issues in condominium living. The answer to questions about your general situation will to some extent depend on specific language contained in certain provisions of your association’s governing documents, including the exact wording of the pet restriction and the extent of the board’s rule-making authority. However, based on the information you provided, it appears that your board has adopted an illegal rule.
A restriction contained in a board-made rule cannot contravene a right contained in or inferable from your declaration of condominium, the governing document of highest authority. If your association’s declaration only prohibits tenants from keeping pets, and there are no other references to pet restrictions contained in the declaration, the board may have overstepped its authority by imposing this pet weight restriction by board rule. That is a pretty close call and would require legal review. Even if the weight restriction was properly added to the condominium documents, existing over-size dogs would have to be “grandfathered” according to case precedents.
Also, even if the board had the authority to adopt such a rule, the procedure the board used to adopt this rule appears to have been flawed and contrary to the requirements of the Florida Condominium Act. Any board meeting where the board considers the adoption of a rule which affects “unit use” must be noticed not less than fourteen days before the board meeting. Notice of such a board meeting must be posted and mailed/delivered to all owners at least 14 days prior to that board meeting.
Question: I am the secretary of my homeowners’ association. In reading the bylaws, I see that I am responsible for making sure that the association maintains all official records. However, our bylaws do not specify what constitutes an “official record.” We just had our annual elections. We now have ballots, and a large number of torn open envelopes. Are these all official records? And, if so, how long do I have to keep them for? J.S. (via e-mail)
Answer: That is a good question. The Florida Condominium Act (Chapter 718 of the Florida Statutes) specifically lists ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners as “official records” which must be maintained for one year from the date of the election/meeting (generally speaking, most records must be kept for seven years).
The Florida Homeowners’ Association Act (Chapter 720 of the Florida Statutes), however, does not mention voting materials used at members’ meetings as part of “official records.” However, the HOA Act does include a “catch all” provision that requires homeowners’ associations to maintain all “written records” not specifically listed in the statute. It is my opinion that ballots and all of the envelopes fall within this definition, and must be kept as official records. Of course, I am assuming your HOA is conducting secret ballot (rather than proxy-based) elections under proper authority in your bylaws, which is one of the most common mistakes I see in homeowners’ association operations.
The HOA Act generally provides that official records must be maintained within the state for seven years unless a different timeframe is provided (for example, bids only need to be kept for one year). Therefore, as odd as it may seem, all of these materials are supposed to be kept for seven years. If there is a management company, their contract usually requires them to oversee this.
Over the past few weeks, the Miami Herald and Univision have teamed up to investigate allegations of fraudulent condominium elections, primarily in Miami-Dade County. In fact, Miami-Dade County by far has the highest number of complaints of any county in Florida for voter fraud, according to the Department of Business and Professional Regulation, accounting for 566 of the 1908 complaints filed. One condominium in Miami was found to have had a record turnout where 115% of the owners participated in the election!
Not coincidentally, the State Legislature saw it appropriate last year to pass laws to protect against voter fraud and to facilitate voting in condominiums by enacting online voting provisions.
Electronic voting for Condominiums, Cooperatives and Homeowners’ Associations is now allowed, including for the most controversial of all votes – elections. Associations may conduct elections and other unit owner votes through an internet-based online voting system if the unit owner consents, in writing, to online voting and if association adheres to certain requirements. These include providing a method to authenticate the unit owner’s identity to the online voting system, a method to transmit an electronic ballot to the on- line voting system that ensures the secrecy and integrity of each ballot and a method to confirm at least 14 days before the voting deadline, that the unit owner’s electronic device can successfully communicate with the online voting system.
There are two (2) surveys that are currently open that we encourage you to take.
CondomundoUSA Association Voting and Fraud Survey
First is the CondomundoUSA Association Voting and Fraud Survey. CondomundoUSA is Becker & Poliakoff’s Spanish language blog.
CondoMundoUSA has created a survey intended to help identify concerns of community association members related to voting. The results will help create educational materials and spearhead potential changes in statutory provisions governing voting in communities. Or perhaps the survey results will show that the current statutory election procedures are not the problem, but rather the lack of education and implementation.
The Survey is available in English and Spanish and should only take 5 minutes. Please click on your preferred language. The survey will be available through July 8, 2016.
En Español: https://www.surveymonkey.com/r/condomundousa1
In English: https://www.surveymonkey.com/r/condomundousa2
CALL’s 2016 Florida Community Living Survey
We want to know what’s on the mind of community association residents in Florida.
Based on feedback we received during this year’s legislative session from our CALL members, we have created “The 2016 Florida Community Living Survey.” The Survey will be available through July 8th, 2016. If you are interested in sharing your views, please click on the following link: https://www.surveymonkey.com/r/callbp
Your responses to questions about community associations will help us gain a better understanding of your needs and concerns.
CALL will publish the results on its site www.callbp.com and share them with representatives of business, government and the press, thus enabling you to have a stronger voice in issues that affect your home, quality of life and real estate investment.
The survey is completely confidential and only aggregated results will be reported. By way of thanks, five respondents who complete the survey and provide contact information will be selected at random to receive $50.00 American Express gift certificate.
CALL’s 2016 Legislative and Community Association Resource Guide will be available very soon. Even though the legislative session ended without any significant piece of community association legislation passing, it is important to look back on the 2016 session and the bills that were filed, because it is likely that these issues will continue to be debated in the future. There is also legislation that we will be reviewing that passed during previous sessions, but that are now becoming more important, including electronic voting and fire sprinkler retrofitting opt-out.
This year’s Guide will feature the following:
- Update on Electronic Voting and BPBALLOT
- Update on Fire Sprinkler Retrofitting and Opt Out Vote
- 2016 Bills of Interest that Passed and Did Not Pass
- Links to the legislative websites where you can access the final “Enrolled” version of the bills
- Case Summaries
- “Practical Pointers” for associations to help implement the 2016 legislative changes and get ahead of potential changes in 2017
- A list of recommended “Action Items” for associations after the 2016 legislative session.
If you would like to pre-register to receive CALL’s 2016 Legislative and Community Association Resource Guide, please register online at http://callbp.com/event_registration.php?event_id=578
A PDF copy will be emailed to you when the Guide becomes available.
Question: I am a unit owner in a high-rise condominium. At a recent board meeting which I attended, the issue of insurance was discussed. The board stated unit owners are not required to carry insurance. Is that right? I thought the condominium law mandated that all unit owners must carry insurance for their units? T.T. (via e-mail)
Answer: Good question, the law is a bit confusing. Generally speaking, the association insures the buildings, including many parts of the unit such as drywall. The current version of the Florida Condominium Act (Chapter 718 of the Florida Statutes) does not specifically mandate that unit owners must carry personal insurance (commonly known as “HO-6” insurance). The current version of the statute does, however, define those areas of a unit which the unit owners are “responsible” to insure which includes floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit While unit owners are “responsible” to insure these defined areas within their units, the statute does not mandate it.
You may be thinking of the 2008 change to the law which did, in fact, implement mandatory HO-6 insurance policies for unit owners in condominiums. The 2008 change in the law further granted an association the authority to “force-place” and purchase and charge a unit owner who failed to confirm that they did carry HO-6 insurance. This law was repealed in 2010.
You should also check your condominium documents, as there may be a requirement which mandates that unit owners carry HO-6 insurance. In my opinion, such a provision, while not common, would likely be legally enforceable.