Naples Daily News Q&A Column, April 22, 2018

By April 22, 2018News, Questions & Answers

Q: I was just elected to the Board in my community and I am told I need to take a class to become certified.  Are these classes necessary and are they useful?

-S.S., Bonita Springs

A: Yes, Florida law provides that newly elected Directors in condominium, homeowners associations, and cooperative associations must complete an education curriculum (“certification class”) or certify in writing that he or she has read the governing documents, that he or she will uphold the documents and policies, and that he or she will faithfully discharge his or her fiduciary responsibilities.  Most people opt for the certification class.

It has been our experience that the board certification classes are incredibly engaging and helpful.  The classes are not intended to cover every aspect of condominium and HOA governance, but the required subjects provide a wonderful foundation for new Directors and existing Directors seeking to learn more.  Each class yields unique questions and discussions and each year there are new statutes and court decisions to convey. I personally take great joy in the teaching the classes.

Fundamentally, there are core concepts of condominium and HOA governance that are simply not taught anywhere else.  Many newly elected Directors come from states with different laws, or come into a homeowners’ association while previously serving on the Board of condominium association, and the differences can be substantial and surprising.  For example, the segments discussing Board meeting requirements, email usage, committee meeting requirements, and reserves reflect substantial differences in condominium and HOA governance, and clarify a litany of different rumors and assumptions about Florida law that are not always correct.  It is also an opportunity to admit that not all areas of condominium and HOA law are settled, and that (surprisingly) different attorneys may have different interpretations of applicable statutes.

Although you do not leave the certificate class an expert in condominium or HOA governance, you will learn something new and it will hopefully make you a better Director – even if only in a small way.  I think most would agree that this is helpful for any community.

There are many certification providers and our Firm is offering our last certification class before the summer months on May 2, 2018 at 9:00 AM in Naples.  If you want to attend, please register at www.gadclaw.com or by calling 239-687-3936.

Q: Can the spouse of a Board member serve on a committee?

-T.G., Naples

A: In most instances, yes.  A complete answer would require a review your Bylaws and other governing documents because your specific documents may self-impose committee eligibility requirements, but it is important to note that the statute would not preclude a spouse serving on a committee with one exception.  The committee charged with conducting fine and suspension hearings may not include the spouse of a Board member. In all other instances, it is not prohibited by statute.

Q: Prior to Hurricane Irma, our condominium windows never leaked.  We did not have any issues during the winter and recent rains have shown some moisture and leaks around the windows.  Who is responsible to make these repairs?

-S.H., Marco Island

A: This is a good question because even though the windows sustained any impact by debris, it does not mean that the window, framing and related components were able to survive the wind and pressure changes associated with high winds.  

The general rule is that the condominium association repairs and replaces property damaged by a hurricane that is insured by the condominium association.  Florida law today generally requires the condominium association to insure windows. Thus, the critical question is whether the leaks are the result of damage caused by a hurricane event.  Because most Board members and most owners are not structural engineers, you should consult with a professional to determine whether this is even plausible. If the answer is yes, the windows were damaged by a hurricane, then the Association would likely be responsible to make the appropriate repairs to the window and you would be responsible to repair and replace the paint, window coverings, floor coverings, and other property insured by the unit owner.

If the answer is no, and the window issues are caused by normal wear and tear, then you would need to analyze your specific declaration of condominium to allocate responsibility to maintain, repair and replace the windows.  If this document indicates that the unit owners are responsible to maintain, repair and replace windows, you may ultimately be responsible.

It is important to note that the above analysis is general in nature.  There are statutory mechanisms to alter responsibility for hurricane events and there are statutory exceptions to the Association’s insurance obligations.  For example, if an owner fails to property maintain his or her windows, or if the owner fails to follow a valid rule or protocol concerning windows, liability may be apportioned differently.  Thus, I would recommend you consult with a licensed Florida attorney to review your governing documents and any expert reports.

Q: We have an owner that lives in the unit and uses the amenities.  Her son does not live in the unit, but claims to be an owner and uses the amenities.  The deed reflects that the mom has a life estate and that the son owns the property. Who is the real owner of this unit?

T.R., Naples

A: This is referring to a life estate deed.  These deeds are useful estate planning tools where a property owner records a deed retaining only the right to live in the unit for the rest of his or her life, but also providing that title passes to a beneficiary on death.  These deeds help the real property avoid probate at the death of the grantor. In Florida, life estate deeds can be non-revocable, or the grantor can retain certain rights, including the right to unwind the life estate deed. From the condominium’s perspective, the Florida arbitration cases have determined that the mother is the “owner” for membership purposes.  The mother would have the right to vote and the right to use the amenities and the son would not be the “owner” until the mother passed away.