Naples Daily News Q&A Column, December 10, 2017

By December 10, 2017News, Questions & Answers

Q: Can a homeowner’s association, by its Declaration of Covenants, set the amount of a Resale Capital Contribution and give its Board of Directors the power to change that amount from time to time or would such a change require an amendment to its Declarations?

R.G., Naples

A: It depends on how the provision in the Declaration of Covenants is drafted.  If the provision gives the Board the authority to adjust the resale capital assessment then no amendment would be required.  If the provision in the Declaration fixes the amount without allowing for adjustment the provision would need to be amended.  Amendments to the Declaration almost always require a vote of the owners to be approved.

Q: A number of owners in our Condo Association have questions regarding a gift which was presented to our retiring Manager.  We, the owners, were never informed that the President and the Board (nine members total) voted to present a $5,000 gift to our outgoing Manager and a $3,000 gift to a maintenance employee.  Does the President and BOD members have the authority to award monetary gifts without discussion or knowledge of the owners?  When this question was asked at a Board Meeting, our President stated he has the right to spend $10,000 without any approval.  We the owners feel any such expenditure should be used for the betterment of the association.

S.B., Estero

A: The Condominium Act Section 718.115(1)(a) provides that “common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property, costs of carrying out the powers and duties of the association, and any other expense, whether or not included in the foregoing, designated as common expense by this chapter, the declaration, the documents creating the association, or the bylaws.”  So, payment of salaries to a manager and maintenance person would be considered a proper common expense.  Performance bonuses or year-end bonuses are generally considered to be a part of the employee’s compensation and but this presumes the employee will continue to perform the job.  What you have described as a “gift” would not in my opinion be a proper use of assessments as gift giving is not typically identified in the governing documents as a common expense.  If the President claimed to have the authority to spend $10,000 without Board approval I would ask to see written documentation of such authority.   However, whether considered proper or not the decision to give the gift should have been made at a properly noticed meeting of the Board.  Under no circumstances should the fact that such expenditures occurred be kept from the owners.

Q: I live in an older condominium.  I live in an upper floor unit which, by the way, is separated from our downstairs neighbor with at least 8 inches of reinforced concrete.  Six years ago I did an extensive renovation, including the master bathroom with new tile floors, new tile walk in shower and new fixtures throughout.  A few months ago, my first-floor neighbor complained about water staining his master bath shower ceiling which is directly below my shower. I have seen no signs of leaks or standing water anywhere in my unit.

Eventually, my neighbor opened his ceiling drywall and there was clear evidence that water was dripping from the shower trap that is located below the concrete floor and above his drywall ceiling.  I engaged a plumber to check for leaks, he first put a plug in my shower drain and filled the shower with 4 inches of water and let it sit for 48 hours; there was no signs of leaking below.

The plumber concluded that the trap itself was leaking and also concluded that it had not been installed in accordance with building code even for the year it was constructed.  One can only imagine the headaches and cost of jack-hammering my shower floor and rebuilding the drainage system through my neighbor’s space.

I made inquiries to our managers about where the separation of common property and private property occurs.  They said under Florida law, the drain pipe is my responsibility all the way to the point where my neighbors drain pipe joins, it then becomes a common pipe and responsibility of the Homeowners Association.

I don’t know if this is correct.  It does not make logical sense to hold me responsible for repair and maintenance of property within a condominium that I have no right of access and no right of inspection.

D.B., Bonita Springs

A:  The responsibility for the maintenance, repair and replacement drain pipe you describe should be covered in the Declaration of Condominium.  It is fairly common that the Declaration will provide that such pipes that are located outside of the condominium unit but that only serve a single unit are the responsibility of the unit owner.  This is not always the case however so you need to check your documents.   If the Declaration does not address such single service items then you need to determine if the pipe in question is located outside of the legal boundary of the unit.  (It probably is since you said it was below the slab.)  Everything outside of the unit boundary would be common element which the Association is required to maintain and repair unless the Declaration expressly made the Unit owner responsible for the pipe.

Q: How do we remove a Condominium, Cooperative or HOA board member from the board who we feel is acting improperly?

F.I., Naples

A: Any member of the board may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests.  Ten percent of the unit owners may petition the board for a special meeting to consider removing a board member or members.  Alternatively, with a special meeting a board member can be removed by written agreement signed by at least a majority of the total voting interests.  Please note that recalls by written agreement have a much higher success rate because the procedures are easier.  A “How To” guide can be found myfloridalicense.com/dbpr/lsc/condominiums.  Note: The Division of Florida Condominiums, Timeshares, and Mobile Homes will not accept for filing a recall petition when there are 60 or fewer days until the scheduled reelection of the board member sought to be recalled or when 60 or fewer days have elapsed since the election of the board member sought to be recalled.

Q: Is it true the cost of bundled services for internet and cable television service is a common expense, whether or not I use the service?

N.L., Fort Myers

A: Yes, these services are common expenses if the declaration so provides, or if the condominium, homeowner, or cooperative association contracts with a service provider.  The cost for the services under a bulk rate contract may be allocated on a per-unit/lot basis rather than a percentage basis, if the declaration provides for other than an equal sharing of common expenses. Any contract must provide, and is deemed to provide if not expressly set forth, that any hearing impaired or legally blind unit owner who does not occupy a unit with a non-hearing impaired or sighted person, or any unit owner receiving supplemental security income under Title XVI of the Social Security Act or food assistance administered by the Department of Children and Family Services may discontinue the cable or video portion of the service without incurring disconnect fees or subsequent service fees.

Q: Can my Association lien my property if I do not pay a fine that the Board imposed on me?

T.O., North Naples

A: It depends.  If you live in a condominium or cooperative association the answer is no, because Chapters 718, Florida Statutes (the Condominium Act) and 719 Florida Statutes (the Cooperative Act) both expressly prohibit the Association from filing a lien to secure payment of a fine.  These Acts also both cap fines at one hundred ($100) dollars per day up to one thousand ($1,000) dollars for a continuing violation, such as parking a pick-up truck in the driveway for 10 days.  Conversely, Chapter 720, Florida Statutes, (the HOA Act), while capping fines at $100 per day allows fines to accrue beyond $1,000 for a continuing violation if the Declaration of Covenants so provides.  Also, Chapter 720 also provides that the HOA can lien for fines that have accrued to $1,000 or more.