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New Laws Can Cause Confusion

Question:        I read your recent column regarding the new Florida statutes. I am the manager of a homeowners’ association. The maintenance man and I each have a debit card in the association’s name for purchases of materials, emergency repairs, and the like. Under the new legislation, would we be allowed to continue using these cards? If not, how do I continue to manage the purchases, specifically, ones that come up unexpectedly and need to be addressed immediately?  (C.B. via e-mail)

Answer:        The new law only applies to condominium associations, therefore, it would not be applicable to your situation.

In the condominium context, associations with debit cards must discontinue using same and should close those accounts. Curiously, the new law does not regulate credit cards.

In my experience, the most effective way to manage minor purchases of an immediate nature (office supplies, small tools, and the like) is for there to be a written policy from the board as to the level of the manager’s spending authority without board approval. Then, these purchases can simply be run through the association’s checking account, if the manager is an authorized check signer. If purchases are made at stores where business checks are not accepted, I think a credit card is the next best alternative. I am not a proponent of “petty cash” accounts for associations, as it is difficult to account for those monies and a paper trail of the association’s expenditures is always the most desirable goal.

Question:        Recently, an owner in our homeowners’ association wanted to videotape the monthly board meeting. We know this is permitted in Section 720.303(10) of the Florida Homeowners’ Association Act. However, that law also says the board may adopt “reasonable rules” governing the recording of meetings. Could you provide some examples of what reasonable rules might be? (L.C. via e-mail)

Answer:        Examples of applicable rules might include a requirement for notice to the association that the meeting is being recorded, a prohibition against the use of lights or other distracting apparatus, and requiring the recording to be done from a fixed location (rather than moving around the room).

An issue I frequently encounter is owners who record meetings and post the videos on internet websites or social media to make some kind of political point. These postings sometimes show board members in a bad light.

In my opinion, volunteer service on the board does not necessarily translate into an agreement to have photographs or video recordings of you posted on the internet for the world to see. On the other hand, there are some complicated legal issues pertaining to free speech rights which come into play. A discussion with legal counsel would be in order to explore that particular issue further.

Question:        I am a real estate agent and was involved in a recent closing on a condominium unit. The seller felt that he should have received his pro-rata share of the reserve funds when the unit sold. What is your take on this? (A.G. via e-mail)

Answer:        The Florida Condominium Act broadly defines “common surplus” to include “the amount of all receipts or revenues, including assessments, rents, or profits, collected by a condominium association which exceeds common expenses.” Unspent reserve funds are, in my opinion, part of “common surplus” and are “appurtenant” to the unit, meaning that the rights in those funds pass with the title to the unit. If the seller of a condominium wishes to receive credit for the amount of reserves being carried by the association, that needs to be negotiated at the front end when setting the purchase price.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com.

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1 Comment
  • BILL DORGAN
    August 14, 2017

    Question:
    I am the VP and the webmaster of our HOA Board. Our President contends that “the website (and its assigned email addresses) are NOT acceptable as formal means of communication from the board to unit owners. The only acceptable means of communication are those spelled out in our governing documents – US Mail. In order to change that, we need to revise our community bylaws which require 2/3 approval from all voting interests.” I thought recent legislation approved email as an official means of communication. Is she correct?

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