Question: I am on the board of my association and recently attended a board certification class where the requirement that board members be “certified” was discussed. The other members on my board question this requirement. Can you please explain? E.O. (via e-mail)
Answer: Over the past several years, all of Florida’s community association statutes have been amended to require that board members be “certified.” Newly elected or appointed board members must sign a form, that provides that the board member has read the association’s governing documents, and that such board member will work to uphold such documents to the best of his or her ability. Further, the board member must agree that he or she will faithfully discharge his or her fiduciary duty to the association’s members. In lieu of signing this written certification, a newly elected or appointed director may instead provide a certificate demonstrating that they have satisfactorily completed an approved educational course. A prospective board member can attend and complete such an educational course up to one year in advance of taking a seat on the board.
In the event that a board member fails to either complete an educational course or sign the required form within ninety days of their election or appointment to the board, such board member is suspended from service on the board until they complete the requirement.
Becker & Poliakoff provides free Board Certification classes statewide. Please visit www.bplegal.com/events to see our latest offerings.
Question: I live in a community composed of townhouse villas with shared party walls and roofs. Our governing documents state that the owner is responsible for exterior maintenance, repair, replacement and insurance. The Association is considering amending the declaration to shift responsibility for all exterior maintenance, repair and replacement of the villas (or at least painting and roofs) to the association, and increase the assessments accordingly. Is such an amendment enforceable? Does the fact that the owner insures the building change the answer? P.F. (via e-mail)
Answer: In 2011, Florida’s Fourth District Court of Appeals addressed a similar issue. The owners approved an amendment to shift replacement responsibility for driveways on the individually-owned lots from the owners to the association. An owner filed a lawsuit and challenged the validity of the amendment.
Question: I live in a 12 unit condominium. Our declaration of condominium provides that the flood insurance “may be purchased if the association so elects.” The association currently carries flood insurance, but 9 of the 12 owners would like for the association to discontinue this policy. Is there a state law that requires the association to maintain flood insurance? R.A. (via e-mail)
Answer: The Florida Condominium Act provides that an association “may” obtain and maintain flood insurance for the condominium property. The statute, in a different part, also provides that an association shall use its best efforts to obtain and maintain “adequate” property insurance. Flood insurance is generally considered to be a type of “property insurance.”
Question: Our condominium documents do not specifically mention any parliamentary rules or procedures that are to be used in conducting our meetings. Our president says that the meetings must be conducted pursuant to the “Florida sunshine laws.” Does Florida require that meetings be run pursuant to Robert’s Rules of Order, or some other parliamentary procedures? R.P. (via e-mail)
Answer: The Florida Statutes do not require the use of any particular parliamentary procedures or rules. Further, there is a 1960 decision from Florida’s Second District Court of Appeal which holds that Robert’s Rules of Order is not binding or mandatory in corporate proceedings. However, the governing documents for many communities incorporate Robert’s Rules of Order as the applicable parliamentary guide for association meetings.
I am going to preface this blog post by stating that there are individuals who struggle with emotional disabilities and who can legitimately benefit from the use of an emotional support animal.
However, this blog post is not about those people.
Unfortunately, those of us who live in shared ownership communities, serve on their boards or represent these types of communities have all seen our share of abuse in this area. The legal pendulum seems to have swung very far in the direction of protecting the rights of people who want pets in “no pet” communities regardless if those people have fraudulently framed their requests as being a necessity for their emotional well-being. Meanwhile, the rights of people who specifically purchased a home in a pet-restricted community due to allergies and other health issues, fears/phobias or simply preference are not protected by the government with the same fervor and the board is often prevented from protecting their rights.
The so-called “estoppel bills” (HB 611 and SB 736) were dealt a severe blow this week when the Senate version, SB 736, was “temporarily passed” by the Senate Regulated Industries Committee. That means that SB 736 has not been approved in any committees in the Senate, and with only 5 weeks left and 3 committees that it must go through, the chances of it passing is getting much less likely. The House version, HB 611, was approved in its second committee of reference. However, there were two “no” votes. Thanks to Rep. Fitzenhagen and Rep. Geller for voting “no” on this bill.
Question: In a condominium that permits short term rentals, must the property be ADA compliant and who must make these modifications or alterations? J.B. (via e-mail)
Answer: This is an extremely complex area of law. Important additional facts would include when the building was constructed, how many units are rented out on a short term basis, whether the association is involved with renting units, and who is in “control” of the units.
Question: Our condominium documents require that board members be either the title holder of the unit or the spouse of that person. We currently have a unit that is owned by an “LLC”, and now the person who claims to own the LLC is requesting to vote at the annual meeting and run for the board. Because only unit owners can run for our board of directors, how do we treat a unit owned by an LLC? R.S. (via e-mail)
Answer: Chapter 718, the Florida Condominium Act, defines the unit owner as the record owner of legal title to a condominium parcel. The statute does not discuss how units that are owned by entities, such as corporations, partnerships, limited liability companies, or trusts, are to be treated. Well written condominium documents will address how to treat a unit that is owned by such an entity.
Does your condominium building have security cameras that were installed by the developer? Have there been violations of the association’s security protocol, such as unauthorized use of key fobs and contractor access to the building without registering with the front desk? If the answer to both questions is “yes”, would you think that installing a few additional cameras would constitute a material alteration or addition to the common elements, thus requiring unit owner authorization by vote?
Regular readers of this blog are sure to know that Section 718.113(2)(a), Florida Statutes says:
Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.
Question: Our condominium buildings were built over 30 years ago with cast iron pipes. These pipes are cracking and collapsing under the bathroom concrete floors of the first floor units. The association is in the process of replacing the pipes, which requires the association to first remove the flooring and break up the concrete floor in the unit bathrooms to get to the pipes under the concrete foundation. Given the age of the buildings, it is more likely than not that the floor coverings (tile) that are being removed are not the same tile that was installed by the developer. Who is responsible for replacing the floor tiles once the pipes have been replaced? M.H. (via e-mail)
Answer: It is necessary to review your declaration of condominium to answer this question. Most declarations include what is often referred to as an “incidental damage” clause, which will specify who is liable for repair or replacement of portions of the condominium property which must be disassembled or destroyed when the association performs work on common elements. If your incidental damage clause generally provides that the association is responsible for repairing “incidental damage”, the Arbitration Section of the Division of Condominiums, Timeshares, and Mobile Homes has interpreted such provisions to require that the association restore the unit to the condition in which it existed prior to the reconstruction work.
The legal analysis is usually different when unit owner “upgrades” are involved. This issue often comes up regarding “after-market” balcony/lanai floor tiling placed on the concrete slabs. The arbitrators have generally ruled that the risk of replacing upgrades or betterments falls on the party primarily benefiting from the improvement – the unit owner.
Therefore, your association’s attorney should be able to review your declaration and render an opinion. I would note that this clause is often overlooked in “boilerplate” condominium documents created by developers. Carefully chosen wording can have significant economic consequences, and can help avoid litigation.