Community Update

Lender Questionnaires

By: Howard J. Perl

Associations and association managers routinely receive what are referred to as lender questionnaires on a regular basis. A lender questionnaire is usually a request from a bank, lending institution or title company that requests the Association provide information about the community to the lender. Such requested information generally includes request for information concerning the community make up, collection procedures, community delinquency information, recreation areas, etc. 

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Director Elections in HOAs (i.e. Welcome to the Wild, Wild West)

By: Jennifer L. Biletnikoff

An increasing number of homeowners’ associations are adopting a two-notice, advance-nomination process for electing directors, similar to the election procedures statutorily dictated for condominium associations. Yet with many HOAs still operating with governing documents drafted by the developer, it is not uncommon to hear about situations where an association is running its condo-like election based on past practice rather than the procedures set forth in its governing documents. 

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Timesavers at Annual/Election Meetings

By: Howard J. Perl

In condominiums and cooperatives, general proxies are used for establishment of a quorum and limited proxies are used to vote on a particular matter – amendments, waive reserves or financial reporting requirements, etc. It is only in homeowners associations when proxies may also be used for elections. Proxies and limited proxies are not secret. When returned in an envelope to the association, they can be opened in advance of the meeting. 

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Juno By The Sea North Condominium Association (The Towers), Inc. v. Manfredonia
397 So.2d 297 (Fla. 4th DCA 1981)(On Rehearing)

By: Jay Roberts, Esq.

How to allocate the limited resource of parking spaces is at the heart of THIS CASE. Juno by the Sea North is a condominium building comprised of 70 units located on the east side of Highway A1A in Juno Beach, Florida. There are three parking areas used by the condominium occupants: a covered parking area located in the basement of the condominium building consisting of 20 spaces; an outside parking area directly adjacent to the building consisting of 50 spaces; and an area opposite the condominium building on the west side of A1A consisting of 27 spaces.

By specific provision in the declaration of condominium, the 20 covered parking spaces were designated as limited common elements; i. e., elements exclusively reserved for the use of a certain unit, which were assigned to individual unit owners for $2,000.00 each on a first-come first-serve basis. Thereafter, the developer, and subsequently, the condominium association, assigned the 50 parking spaces adjacent to the building to other unit owners who had not purchased covered parking. The association is responsible for the cost of maintenance of all three parking areas. The two open parking lots were designated in the declaration as common elements, but, unlike the covered parking, were not specifically designated as limited common elements.

For a short interval the association allowed “open parking” in the 50 space lot but that created such a controversial situation, according to the appellees, that the association promptly reenacted the rule assigning spaces in the 50 space lot to those unit owners who had not acquired covered parking spaces. This lawsuit followed. In entering judgment for the challenging owners, the trial court noted that the regulation appeared “logical” and “just” but held that the association had exceeded its authority.

For the initial appellate opinion, the appellate court agreed with the trial court that the association exceeded its authority by assigning the 50 outdoor common element parking spaces to the owners that did not have covered parking spaces. On rehearing, the court reversed its opinion. Specifically, the court stated:

We believe the regulation challenged herein is not only fair but makes good sense. Upon construction of Juno by the Sea, there were 70 parking spaces provided to unit owners in the immediate area of the condominium building. For an extra $2,000 each, 20 unit owners were able to secure the best of these 70 spaces; i. e., 20 covered spaces in the basement of the condominium building. Under the regulation, the remaining 50 unit owners, by virtue of either purchasing their units too late, or by choice, were left with parking in open parking spaces immediately outside the building. Additionally, 27 “spare” parking spaces located across the street were available to all the unit owners.

Accordingly, we do not think it was improper for the association, in devising an assignment plan, to consider, among other factors, the fact that 20 unit owners had already secured convenient, exclusive parking spaces within the condominium building. As noted, supra, the appellant was vested with the authority of regulating the use of the limited common elements; i. e., the covered spaces, as well as the common elements; i. e., the open parking. In addition, the expense of maintenance of the covered spaces as well as the open spaces is borne by the association. Under all these circumstances we believe this plan not only makes good sense, but appears to be the only reasonable alternative, short of total chaos, open to the association. As noted in Hidden Harbour, supra, “each case must be considered upon the peculiar facts and circumstances thereto appertaining.” We believe that under the peculiar facts of this case the regulation was reasonable and within the authority of the association.

So why does THIS CASE matter? Parking is a limited resource in a community association environment. The association, generally acting through the board of directors, can adopt reasonable rules and regulations regarding the common elements, especially when it is a limited resource issue. That said, the court here notes that what is (or is not) reasonable is determined on a case-by-case basis. Prior to enacting such restrictions, your association should have a conversation with its attorney.