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Tenants Have Right To Use Common Property

Q: Our condominium recreational facilities have been very popular this summer. We have received many complaints from owners that they have not been able to enjoy the pool due to the number of guests and renters using the pool. Is it possible for the board to adopt a rule that prohibits renters from using the pool, or at least set aside “owner only” time? (A.B. via e-mail)

A: No. Section 718.016(4) of the Florida Condominium Act states that a tenant leasing a unit has the right to use all association property and common elements that are otherwise generally available for use by unit owners, unless the tenant has waived this right in writing.

Generally, the board of directors is authorized to make rules pursuant to the authority granted under the condominium documents. However, board adopted rules must be reasonable and cannot conflict with the rights granted by the law or the condominium documents. Therefore, a rule prohibiting renters from using the association’s common element pool, or restricting use rights, would be invalid as it conflicts with the law.

The board may be able to set limits on the number of people affiliated with a particular unit who can use a recreational amenity at the same time, but that rule would need to be applied equally to all units.

Q: My condominium association’s board wants to hire a landscape architect. I thought the board was required to obtain competitive bids for all association projects, but the directors do not seem to think that bids are required in this situation. Am I correct? (B.J. via e-mail)

A: While Section 718.3026 of the Florida Condominium Act requires competitive bidding for many contracts, associations are not required to obtain competitive bids for contracts with landscape architects, as they are specifically exempted by the statute.

Generally, an association must obtain competitive bids if a contract for materials, equipment, or services requires the association to pay more than five percent of its total annual budget, including reserves. “Competitive” means the bids must be “apples to apples”, but there is no requirement for 3 bids as many people seem to believe, 2 bids is sufficient

Specifically exempt from competitive bidding requirements are contracts between the association and attorneys, accountants, association employees, architects, managers, engineers, and landscape architects. Additionally, the competitive bidding requirement does not preclude an association from obtaining necessary goods and services during an emergency, and does not apply if a certain business is the only supply source within the association’s county.

Q. I own a unit in a condominium association and a number of unit owners have been discussing projects that should be undertaken by our association to improve the property, including upgrading our landscaping. However, the board has refused to discuss our ideas at a meeting and simply say there is no money in the budget for it. How can we owners get the board’s attention? (O.L. by e-mail)

A. As a general matter, the board is in control of all day to day decisions. There are only certain specific areas where unit owner participation and approval is required, such as electing the board of directors, amending the condominium documents or authorizing the waiver of unscheduled use of reserves. Of course, you can always change the board at the ballot box (by recall or at annual elections).

Section 718.112(2)(c) of the Florida Condominium Act provides that if 20% of the ownership petition the board to address a specific item of business, then within 60 days of receipt of such a petition, the board must either place the item on the agenda of its next regularly scheduled board meeting or call a special board meeting for that purpose. This does not obligate the board to take any specific action on the matter. But, you can at least follow a procedure for the board to formally consider it. Perhaps the fact that 20% of the residents think this is of sufficient importance to sign a petition will help produce a decision.

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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