Nov 2, 2008
Condo & Homeowner's Association Law - Part I
Q: Our condominium association has had more hostility than some third-world countries. All of the unit owners seem to be fighting with the board members. At our last meeting we had to have a security guard present in case the meeting became violent. At the next board meeting they will be voting on a special assessment that is very controversial to the owners. The board members have stated that they will vote on the issue by secret ballot. Can a board vote by secret ballot?
A: The board cannot vote by secret ballot on the issue of a special assessment. The only time a board of directors can vote by secret ballot is when they are electing the officers of the association.
Q: We have a unit owner who does not live at our association. The owner has not visited the unit in over one year. Approximately six months ago, our pest control company went into the unit to do its annual pest spray and told us that the unit was filled with mold. We have written to the owner four times and have not received a response. The board members are concerned that the mold in the unit can spread to the common elements and to the other units. Does the board have the right to take action against this unit owner since the mold can cause harm to the residents of the association?
A: The board of directors has a legal obligation to take the necessary action to protect the common elements and units at the association. If the board is aware of a significant mold problem that is not being addressed, it needs to take action. Since I do not know all of the facts of the situation, I would suggest that you speak to your association counsel immediately.
Q: I am on the board of directors of our association. One of the unit's at the association is in foreclosure. At the last board meeting, the board discussed purchasing the unit since it would be able to be purchased for a low price. Several of the owners objected claiming we cannot use association funds to purchase the unit. Is the association allowed to purchase a unit at the association?
A: If there is no prohibition in the governing documents, an association can purchase a unit at its condominium. You need to look at the articles, declaration and by-laws to determine if it prohibits such a purchase.
Q: Our insurance agent has suggested that we use a non-admitted carrier to insure our property for windstorm. The reasoning is that it would be approximately 10% cheaper in cost and the non-admitted carrier is highly rated. Are we allowed to use a non-admitted carrier?
A: Yes, your association can legally use a non-admitted carrier. As an attorney, I would only recommend that an association use an admitted carrier. If an admitted insurance carrier goes bankrupt, the Florida Insurance Guarantee Association (FIGA) will pay the claims of the carrier. This guarantee does not apply to a non-admitted insurance carrier.
Q: We live in a large condominium association where most of the residents go north for the summer. At least half of the residents are not here from May through November. Last year our association noticed that many units were having mold problems since the residents shut off their air conditioning when they left. Some of the mold traveled from the unit into the common areas or common elements. To avoid this problem, the board of directors want to make an association rule that all owners keep their air conditioning units on 80 degrees or lower. Does the board have the authority to make this rule and enforce this rule?
A: Every board of directors has the duty to protect the common areas, common elements and other units located at the association. The board can pass a rule that requires unit owners to keep the air conditioning on in their unit when the unit owner is out of town.
Q: I am a board president of a condominium in Palm Beach County. Recently, I learned that one of the board members' has signed a check and paid himself money. This payment was unauthorized and without the knowledge of any other board members. When we confronted the board member about the payment, he claims he does not know anything about it. Do you have any suggestions?
A: You should first go to the bank and get copies of the front and back of all checks during the past year. You need to make sure there are not other checks that have been issued without the authorization of the board. Once you have determined that the board member took money without the authority of the board, you should consult with your association attorney. You may need to contact the local police department to file a police report. Furthermore, your insurance agent may have the appropriate insurance or bond that would cover any loss that your association may have.
Mark Bogen has been practicing law for 24 years. He specializes in condo and homeowner association law and authored the book "What Every Condo Owner Should Know." Bogen, a former adjunct professor of business law, has recently started the "Bogen List," which aims to protect associations from scams. If you have a related question for Mark Bogen, please send your e-mails to BOGEN2000@aol.com.
source: Sun Sentinal
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