Community Update

Three Important Considerations if Your Condominium’s Website is Maintained by Your Management Company

By: Michelle H. Kaiser

Every condominium association managing a condominium with 25 or more units, excluding timeshare units, is now required to have a website (which may be a web portal) or application and a laundry list of documents are required to be posted there. While there are many, here are three important considerations if your condominium association’s website (which may be a web portal) or application is maintained by your manager.

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Important Differences Between Flood and Windstorm Insurance. Is Your Association Adequately Protected When the Next Major Storm Hits?

By: Ramon C. Palacio

Boards of Directors of community associations have a fiduciary duty to its members, and one of the Board’s duties is the protection of the association’s physical assets. In Florida, the need for adequate property insurance to protect against hurricanes and severe storms is inescapable. What is often misunderstood, however, are the coverage differences between protecting against the perils of flood damage and windstorm damage, even though both perils are commonly associated with hurricanes and severe storms. Failing to understand the differences between these coverages can result in costly gaps in coverage and the potential for having to levy a special assessment to address those gaps in coverage.

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Our Condominium Just Turned Over From Developer Control. What’s Next?

By: Kaitlyn Silverberg

The developer has just turned over control of the condominium association to the unit owners. There’s a new board and a long to-do list, among which is the important question: What condition is our building really in? The period immediately following turnover is one of the most critical windows in a condominium’s lifecycle. What the board does in the first six to twelve months can determine whether millions of dollars in repair costs are recovered or quietly shifted onto the owners.

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Curci Village Condominium Association, Inc. v. Santa Maria
14 So.3d 1175 (Fla. 4th DCA)

By: Allison L. Hertz

Whose approval a unit owner can rely on when making improvements to the common elements showcases the importance of THIS CASE.

A unit owner made landscaping modifications to the backyard of her condominium unit, which was part of the common elements. While the developer still controlled the Association, the owner asked the president, who was the manager of the developer, if she could place decorative improvements in the backyard. The president verbally approved, saying in his opinion he “didn’t see a problem with it” if it was not permanent, did not impede the water runoff, and did not need a permit. With the president’s verbal approval, the owner installed stones and mulch in the backyard.

A few months later, the Association turned over from developer control and the unit owner-controlled Board had the Association attorney send a demand letter to the owner, stating that the modifications needed to be removed because they were causing damage and flooding to the common elements and it violated the declaration of condominium. The owner sued the Association in response, requesting that a court validate the prior president’s approval. The Association argued that the declaration required the prior written consent of the Board of Directors for improvements to the common elements and the verbal approval of the president was insufficient to comply with such requirement for written Board approval.

The trial court ruled in favor of the owner based upon the verbal approval of the president. The Association appealed. The appellate court began its opinion by noting that Florida law requires a declaration of condominium to be strictly construed. The court further stated that the declaration required owners to obtain permission of the Board prior to making improvements to the common elements, and the owner was required to comply with the declaration. The owner did not dispute that she failed to obtain written consent from the Board before she made the improvements. Instead, she argued that the Association was estopped from enforcing the restriction against her due to the president’s prior verbal approval. The appellate court began its examination of this argument by noting the elements that must be proved to establish the defense of estoppel. They briefly include: (1) a representation, (2) reliance on a representation, and (3) a change in position which is detrimental to the party who relied on the representation.

The owner’s estoppel defense here failed as a matter of law since she did not have written approval from the Board, and the verbal approval of the president could not bind the Association. The declaration was clear that written approval was required and that did not exist. The fact that approval came from the president also did not matter since the declaration that required written Board approval existed at the time the verbal approval was obtained from the president. The appellate court was clear that the owner’s reliance on the verbal approval of the president, when the requirement was for written Board approval, was not reasonable nor justified, particularly when the Association sent a demand shortly after the turnover of control of the Association to the unit owners, and reversed the trial court’s ruling in favor of the owner.

So why does THIS CASE matter? Restrictions in a declaration will be interpreted by a court to mean exactly what they say; and owners who seek approvals must do so in the way required by the declaration. Associations also need to have policies in place for owners to seek approvals, in writing, and remind board members not to provide unilateral approvals but instead advise owners to follow the established polices for seeking approval through proper channels. Reliance by any owner on an approval that is inconsistent with the declaration may be unjustified. If you believe this is an issue in your community, you should reach out to counsel to discuss the specific facts, as they are important to evaluate.