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Board Cannot Suspend Without Hearing

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Q:        Our condominium association board imposed a suspension for use of common facilities as a penalty for an owner who had been renting in violation of our condominium documents. I stated that the suspension would require approval of our compliance committee. Our management company representative stated that the board had the authority to institute the suspension under law. My reply was that the board could only suspend without opportunity for a hearing due to non-payment of assessments. Who is correct? (M. via e-mail)

A:        You are.

Section 718.303(3) of the Florida Condominium Act requires that levy of a suspension of common facility use rights for violation of the condominium documents be “confirmed” by an independent committee before the suspension can be “imposed.” If the committee “rejects” the suspension, it cannot be imposed.

Section 718.303(4) of the statute deals with suspension for non-payment of monetary obligations and delinquencies of more than 90 days. Suspensions for non-payment of monetary obligations do not require a hearing, but must be approved at a properly noticed board meeting. Upon approval, the association must notify the unit owner and, if applicable, the unit’s occupant, licensee, or invitee by mail or hand-delivery of the suspension.

Q:        The law was amended in July of 2017 to prevent board members from serving more than four consecutive two-year terms, unless there are not enough candidates for a contested election, or two-thirds of the owners have approved otherwise. I interpret this new rule to apply to past terms served, since the law does not say that it is prospective. What is your opinion? (S.G. via e-mail)

A:        The general presumption in Florida law is just the opposite. Unless the Legislature specifically states an intent that legislation should be applied retroactively (in which case there are constitutional issues that have to be considered), a new law is considered prospective in application.

Although I have heard debate on both sides of the issue, it is my opinion that the new “term limit” law is prospective in application, and would apply beginning with any board term starting on or after July 1, 2017, the effective date of this law.

The Division of Condominiums, Timeshares and Mobile Homes, the state agency which regulates condominiums and adjudicates most condominium election issues, has taken the same position on the matter.

Q:        My condominium was recently assessed $500 per unit for Hurricane Irma damage. I have “loss assessment coverage” in my insurance policy. My insurer denied my claim because the board did not present a breakdown of what the costs were for. Can you provide any information on this? (L.D. via e-mail)

A:        Section 627.714 of the Florida Statutes states that all unit owner “HO-6” policies issued or renewed on or after July 1, 2010, must include at least $2,000 in property loss assessment coverage for all assessments made as a result of the same direct loss to the property, regardless of the number of assessments, owned by all members of the association collectively if such loss is of the type of loss covered by the unit owner’s residential property insurance policy, to which a deductible of no more than $250 per direct property loss applies.

The statute does not address the specificity of the special assessment notice. Presumably, the notice must comply with the Florida Condominium Act, which requires notices of board meetings where special assessments are going to be considered to include the “nature, estimated cost and description of the purposes for such assessments.” As long as the association’s notice complied with the condominium statute, which is hard to judge without looking at it, it is unclear why your insurer would not pay. Perhaps you can ask the association for some of the detail/backup and provide it to your insurance company. Good luck.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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