Your Condo Questions Answered
Originally published https://www.naplesnews.com
Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: The board of my community association held a board meeting at 2 p.m. during the work week when most of the owners were at work and could not attend. I always thought a board meeting has to be in the evening when most of the community is at their homes after work and can attend. N.W., Naples
A: The condominium act (Chapter 718, Florida Statutes), the cooperative act (Chapter 719, Florida Statutes) and the homeowners association act (Chapter 720, Florida Statutes) do not dictate what time or what day a board meeting must be held. Thus, while the board should consider the schedules of the members there is no obligation to do so. Moreover, no matter what time a board meeting is held there will be some owners that cannot attend due to scheduling issues. There is no way to accommodate all owners in regard to scheduling.
Q: My wife and I own, by separate deeds, two condominium units in a twelve-unit complex. Can we both be on the board of directors at the same time? G.Y., Bonita Springs
A: Yes. The condominium act (Chapter 718, Florida Statutes) prohibits co-owners of a single unit from serving on the board at the same time unless there is no one else willing to serve. Thus, as you and your wife each own a separate unit this prohibition would not apply. However, while you may both serve on the board at the same time, in this case it could prove problematic. Assuming your board consists of three directors that means two directors constitutes a quorum of the board. A quorum of the board cannot meet and discuss association business without noticing a meeting 48 hours in advance. Therefore, you and your wife would not be able to discuss association matters when you are together, or you would be holding an illegal board meeting unless you posted notice in advance.
Q: When we were not in residence a pipe under the concrete slab in our first-floor condominium unit needed repair. This pipe supplies water to our column and to the one adjacent to ours serving a total of 24 units. Approximately two inches of water was found in our unit. Plumbing and concrete contractors were called in by our management company and repairs were made. Jackhammering the concrete, removing 3-4 feet of sand, finding and fixing the pipe leaks in multiple places, returning the sand, and sealing the slab with new concrete were all required. New baseboard molding was installed and painted and a small piece of drywall was installed where necessary. These services were paid for by our condo association. A water restoration company was hired by our management company to remove water and deal with wet carpeting and wet floors so that the above mentioned repairs could be done. Fans and a de-humidifier were installed and remained for five days. Now, here lies our problem. This incident occurred in June and we have just this past week received a bill from our management company for “dry-out” services in the amount of $5,700. We have been told that this payment is our responsibility and not the condo association’s. Back in June we filed a claim with our homeowner’s insurance company and have already accepted payment and have had new carpeting and flooring installed. We do not understand how some of the repairs are the condo association’s responsibility, but others are not. Your input would be greatly appreciated. A.P., Marco Island
A: It is a matter of determining negligence. The association has an obligation to maintain, repair and replace pipes that serve the units and the common elements. If the association had no reason to believe the pipe under your unit was going to break and cause water damage then the association was not negligent in failing to maintain the pipe. As such, the water break and resulting flood was the result of an unforeseeable accident. In such cases the association must make the repair and pay for the items that the association insures for accidents (called an insurable loss or casualty). The association’s casualty insurance does not cover personal items in your unit or carpeting. So, when an accident occurs you are responsible for the items that the association does not insure such as drying out your carpet and personal items. That is what your homeowner’s insurance policy covers. Alternatively, if the association knew or should have known that the pipe was about to break and cause damage and did not take timely action to prevent it then the association could be deemed negligent and while you would still have to pay for your share of the dry out costs, you might be able to recover the cost from the association.
Q: I have served on my condominium board for 15 years in a row. I have heard there is a new law limiting how many years a person can serve on the board. We are a small condominium with only 15 units. Is there an exception to the law for small condominiums? If I resign before the election to break my continuous service streak can I serve on the board? M.G., Marco Island
A: The relevant portion of the law you mention is 718.112(2)(d)2 enacted on July 1, 2018 and reads, “A board member may not serve more than eight consecutive years unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.” There is no exception for small condominiums. However, there is great debate as to whether the law is retroactive from July 1, 2018 or prospective from that date. My opinion is that the law is prospective meaning the eight- year clock started on July 1, 2018 so prior years of service before that do not count. However, the Division of Condominiums holds the opposite opinion and if a complaint were filed, the Division arbitrator would likely rule you are not eligible. Since you already have served 15 continuous years resigning before the election will not get you around the law. So, your options are to run and hope you get two-thirds of the votes which means 10 of 15, if all 15 owners vote, or two-thirds of whatever number vote in the election. If that happens you can serve another term. Or you can run and if you do not get two-thirds of the vote but still win you can assert the position that prior years before July 1, 2018 do not count. If nobody files a complaint, you’re good until the next election. Finally, if you put your name in to be a candidate and the election is uncontested, meaning there are an equal or lesser number of candidates than seats available, you can serve. Note that this law applies to Condominiums only.
Attorney Richard D. DeBoest is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross. Visit the website at www.gadclaw.com or ask questions about your issues for future columns by sending an inquiry to: [email protected]