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Can the board make a no-smoking rule for inside an owner’s unit?

Q. Our board, without a membership vote, adopted a no smoking rule that includes portions of the owner’s private unit. The building was built in 2001 and the rule changed about a year ago. Is it legal for the association to dictate what you do in your own unit? I lost a very good potential buyer because of this rule. I would appreciate your input. – S.L.

A. This rule is probably not valid for several reasons. If the board of directors wishes to change the rules regarding activities within the boundaries of units, it must provide notice of the proposed rule to all owners at least 14 days before the meeting at which the rule will be adopted. Further, the authority to make such a rule must be clearly stated in the Declaration of Condominium. If the declaration does not authorize the board to regulate certain activities within individual units, the rule will likely be considered illegal. If smoking within units was somehow causing a nuisance or disturbance to others, the board would have the right to regulate such an activity. However, if smoking is contained entirely within the unit and is not disturbing anyone, the board may have difficulty enforcing such a rule. A professional review of your condo documents and the meeting minutes would be helpful to further advise you on your rights and potential damages. On a broader scale, the association does have the authority under the Florida Clean Indoor Air Act to ban smoking in indoor common areas where work is performed, including meeting rooms and clubhouse areas.

Q. Our condo association is still fighting delinquencies and foreclosures. Many delinquencies have been resolved by short sales and banks actually foreclosing and taking title, but there remain a couple of dozen abandoned units with large balances and no bank foreclosure activity. Our association lacks the funds to foreclose on all of these units and our board is hesitant to take over the title because the condition of the units could be very poor. Are you aware of any alternatives? – R.G.

A. Your board has several options it may not have considered. First, a surprising number of owners of abandoned units start paying on their delinquent balance once a lien foreclosure is filed. If there is no pressure from the bank or association, the owner has no incentive to pay. Not all owners of vacant units are willing to lose their unit to the association. Second, there are many investors who are willing to pay a significant portion of the delinquent balance to the association in order to have the right to acquire the title and rehab and/or rent the unit while the bank stalls. Such an investor also is going to pay association dues going forward in order to protect the investment. Finally, there are several companies willing to serve as receivers on a global or blanket basis for your association. Upon the filing of the proper paperwork with the court, the receiver will be authorized to enter these abandoned units, make any necessary repairs and rent the units. After the receiver’s fees and expenses are paid, the remaining rents will be paid to the association. If done properly, this can be accomplished without the association actually taking title to the units. Skilled legal counsel can further counsel you on these options. We believe your board has a fiduciary duty to at least explore these options, which have been proven to generate significant funds for struggling associations.

Q. I am on the board of my homeowners association, which is a small community of attached town homes. We share several amenities with the adjoining condominium units including the pool, clubhouse and parking spaces. The neighboring condominium association actually owns and operates these amenities and we share the expense on a pro-rata basis. The condo board prepares an amenities budget separate from its operating budget, but we have no idea if we are paying our fair share. We feel that we could be overcharged on some items. Is there any way to fix this without litigation? – G.A.

A. This can likely be resolved without litigation if your neighboring condo board is reasonable and allows your board to review the allocated expenses. First, your board’s legal counsel should review both your homeowners’ association documents and the neighboring condominium documents to clarify exactly which items your HOA is responsible for. Second, the condominium board is required to prepare its operating and amenities budget through a certain process. There must be a meeting to approve the final budget and a 14-day notice to the condominium owners. Your board should request minutes of those meetings, which must be in the condo association’s official records for seven years. You should also request the invoices, allocations, contracts, insurance policies and other documents reflecting expenses for administration, management, utilities, repairs, maintenance, and other miscellaneous fees contained in the amenities budget. Assuming you can obtain these records, it is recommended that you hire a qualified certified public accountant or auditing firm that can review the records and confirm whether you have a serious problem. If the neighboring condo board is unwilling to provide anything to support the shared charges, you will need to consult with legal counsel.

Q. A disgruntled owner in our condo association persists on altering the positioning of the association security cameras to allow him to write graffiti on association property regarding the salaries of the association employees. The individual has been identified on two other occasions where the cameras have recorded his actions. First, can our board withhold the salaries of association employees to deter this problem? Second, what can be done to stop this individual? – W.M.

A. Regarding salaries, your board should not withhold this information from the membership. Section 718.111 (12) of the Florida Condominium Act does allow your board to withhold personnel records, but this does not include employment agreements with an association employee or management company, or financial records that indicate the compensation paid to an association employee. Regarding the conduct of this owner, the association has several options aside from reporting any criminal conduct to the sheriff’s office. First, the association can fine this owner up to $1,000 if so authorized by the condominium documents. Second, the costs of repairing the damage caused by this owner should be assessed to this owner’s individual account and secured by a lien if not paid. Finally, if the owner refuses to cease conduct that causes a nuisance to others and damage to association property, the association can pursue a judgment in court ordering the owner to comply with the community documents and pay the association’s legal expenses incurred in the process.