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New Laws Generate More Questions…

Question:        Your recent column regarding the new laws stated that associations with websites must post their “estoppel certificate” information on the website. If the association currently has a website available to its members only, does it need to be expanded to allow outsiders to obtain estoppel information? If so, what information is required to be posted on the website? (R.A. via e-mail)

Answer:        Good question, one of many deficiencies in this year’s batch of new laws.

The statute states that each association shall “designate on its website a person or entity with a street or e-mail address for receipt of a request for an estoppel certificate.” Using the “plain meaning rule” of statutory interpretation, if the association has a website, it is “its” website, and the statutorily required information needs to be included.

Perhaps additional guidance can be gleaned from the new law that takes effect July 1, 2018, requiring all condominium associations operating more than 150 units to have a website. That statute provides those websites must be (a) an “independent website or web portal wholly owned and operated by the association;” or (b) a “website or web portal operated by a third-party provider with whom the association owns, leases, rents, or otherwise obtains the right to operate a web page, subpage, web portal, or collection of subpages or web portals dedicated to the association’s activities and on which required notices, records, and documents may be posted by the association.”

Question:        I enjoyed reading your recent articles on the 2017 changes to the community association statutes. Do these laws only apply to community associations in the State of Florida, or do they also apply to other states? (Q.D. via e-mail)

Answer:        Thank you. The statutory changes we recently discussed only apply to community associations in Florida, and that is the focus of this column.

However, there are various federal statutes that generally apply to every community association in the nation. For example, the federal Fair Housing Act prohibits housing discrimination based on various “protected classes,” including disability and familial status (having children). Issues arising under this statute include the ubiquitous “support animal” request.

Another federal statute that associations must deal with regularly is the Telecommunications Act. This law, among other things, permits residents of various housing types to install “satellite dishes” of one meter (39.6 inches) or less in diameter on any portion of the property they own or over which they have exclusive control, regardless of any contrary provisions in the governing documents of a community association.

Question:        My condominium association’s documents do not discuss changes to the common elements. Is there a portion of the Florida Statutes that address this issue?  (D.A. via e-mail)

Answer:        Yes. Section 718.113(2)(a) of the Florida Condominium Act provides that unless otherwise provided in the declaration of condominium, there is to be no material alterations or substantial additions to the common elements or association real property, unless the change is approved by 75% of the total voting interests in the association. There is usually one “voting interest” assigned to each “unit,” although some condominiums do have weighted voting.

If your declaration of condominium is silent on the issue of material alterations or substantial additions to the common elements or association real property, then such changes would have to be approved by a 75% of the membership. There are exceptions to the requirement to get membership approval recognized by court decisions. For example, if a change is necessary to maintain, preserve or protect the condominium property, the association may be able to proceed without membership approval.

However, generally speaking, in the absence of language in the declaration authorizing alterations, even minor or aesthetic alterations to the common elements or association real property would require membership approval. If your association has questions regarding whether it is obligated to obtain membership approval, it should review that issue with its legal counsel.

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2 Comments
  • Avatar
    jim
    August 23, 2017

    Our condo community consist of over 200 free standing units. Exterior additions have been added with the approval of the Architectural Committee. The question is does the condo insurance have to include these additions. Presently we only cover the units as built

    • Avatar
      PJ Hultzapple
      August 29, 2017

      The association’s insurance does not. It is the responsibility of the condo owner to insure approved additions.