Question: Our subdivision has 20 platted lots. At the time of initial development, one owner purchased two lots and built one home on the combined lots. Our homeowners’ association has only assessed this owner as if he only owns one lot. Shouldn’t the members be assessed based on the number of lots owned as opposed to the number of homes built on those lots? S.J. (via e-mail)
Answer: It depends.
The Florida Homeowners’ Association Act provides that assessments levied pursuant to the annual budget or special assessment must be in the member’s proportional share of expenses. While the statute further provides that the member’s proportional share of expenses is as described in the governing documents, it goes on to state that the share may be different if the lots are different. Factors to consider in determining whether the lots are different include the state of development and level of services received by the owners of the lots. For example, it is not uncommon to see governing documents that provide that vacant lots pay less than improved lots or lots on which villas have been constructed pay less than those with single family homes.
It is also important to look to at the governing documents to see how the term “lot” is defined, and how assessments are allocated. It is likely that the definition of “lot” includes a reference to the lots as created by the subdivision plat. If the governing documents then impose assessments on those “lots,” merely combining two lots into a single family residence does not in and of itself relieve an owner of paying two assessments, nor having two votes for that matter. It is also important to know what the law had to say about the issue when the subdivision was created, as that may play some role in the scope of permissible amendments to the declaration of covenants, if necessary, to address this issue.
Some counties or municipalities will not approve a lot combination without the association’s approval. In those cases, the association has the opportunity to require that the owner address the matter, which is usually documented by a covenant recorded in the public records.