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Term Limits in Bylaws Trump Statute

Q: I am writing regarding your recent series of articles on the new condominium legislation.
You have stated that the new law imposes term limits of eight years. Our current bylaws impose
a six year term limit, no more than three consecutive terms of two years each. Which controls?
(A.F. via e-mail)

A: In my opinion, your bylaws control. The 2018 “term limit” provision will (unless
repealed) apply to all condominium associations. However, the Florida Condominium Act in
certain instances permits bylaws to be more restrictive than the statute. The law was amended
about ten years ago to permit condominium association bylaws to contain their own term limits.
That language is still in the statute. Therefore, I think the language in your bylaws trumps the
statute.

Q: I am renting a condominium unit for the spring. The condominium association’s board
has threatened to fine me for parking violations. However, parking is not addressed in my lease.
My lease also does not say anything about the association being able to fine me. Is this legal?
(M.S. via e-mail)

A: In my opinion, a condominium association has the right to levy fines against tenants.
Section 718.303(3) of the Florida Condominium Act provides that each owner, tenant, and
invitee is governed by the Act and the association’s condominium documents, such as the
declaration, bylaws and rules and regulations. The Act also provides that such documents are
deemed expressly incorporated into any lease. Therefore, as a tenant, you are obligated to follow
the requirements set forth by the Act and the association’s documents, regardless of whether this
is explicitly stated your lease agreement or not.

In addition to fines, condominium associations also have the ability to suspend tenants’ use
rights in certain common elements and common facilities, such as recreational facilities or
amenities for violations of the association’s documents.

A condominium association must follow the procedural requirements in the Act before it is able
to levy a fine against an individual or suspend an individual’s use rights. This includes levying
the fine or suspension at a duly noticed board meeting, and then providing the accused individual
with 14-days’ notice of an opportunity for a hearing before an independent committee.
A fine may not exceed $100 per violation, and may not exceed $1,000 in the aggregate.

Q: I have owned a condominium unit for a few months. The board has been discussing
passing a special assessment to finalize all of the repairs needed from Hurricane Irma. Would I
still be responsible for the special assessment if I did not own my unit at the time of the
hurricane? (S.B. via e-mail)

A: Yes. Unit owners are required to pay assessments which come due when they hold title,
regardless of the purpose of the assessment because the obligation for payment is “appurtenant”
to the unit, meaning it runs with the title.

The Florida Condominium Act defines a “special assessment” as any assessment levied against a
unit owner other than the assessment required by the adopted annual budget. The law gives
associations the right to record a claim a lien against the condominium units for unpaid
assessments, and to bring an action to foreclose the lien and recover a money judgment for the
unpaid assessments, interest, late fees and attorneys’ fees.

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

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