Naples Daily News Q&A Column, January 14, 2018

By January 14, 2018News, Questions & Answers

Q: Is there a time limit in the statute of limitations on unauthorized non-conforming changes to exteriors of homes or driveways that would make them legal due to the length of time a   HOA board or ARC committee failed to formally address them.

-S.B., Naples

A: Yes.  The statute of limitation would be 5 years which means a lawsuit would have to be filed within 5 years of the first day of the violation.  However, if the Board has known of the violation and failed to take any steps to enforce the rule then the owner can assert the defenses of waiver and estoppel which can defeat an enforcement action brought within the 5-year statute of limitations.

Q: If a non-approved, non-conforming change to an exterior of a home or drive has not been addressed by the board resulting in no order issued to correct a violation of the current rules and regulations does this set a legal precedent for any future non-conforming changes that are similar in description to be successfully made and grandfathered because the original violation was not formally addressed by the HOA board.

-R.S., Bonita Springs

A: Not usually, as long as the violation that was ignored is not pervasive.  A prior Board that ignored a particular violation or several of them is not going to be prevented from enforcing the restriction on a go forward basis.  However, if the rule violation is pervasive, meaning many homes are in violation, such that a person might reasonably believe there was no rule against then yes, you may have situation where the restriction is now waived.  An example might be a couple of basketball backboards on homes in a 100-home community versus 20 or more.

Q: If members of the ARC committee are pressing to have the rule violations challenged and the HOA board management is dragging their feet in contacting legal counsel for direction on this matter what options are available to ARC committee members to expedite the process.

-S.S., Naples

A: First, the Board should be made aware that it has a fiduciary duty to enforce the rules.  If it does not want to enforce a particular rule then it should change the rule. The only options when it comes to covenants, restrictions and rules are to enforce them or change them.  The Board is breaching its duty if it simply ignores the existing restrictions and rules. You have several options in this regard. First, remove the Board by recall or election and install Directors that will fulfill their duty properly.  Secondly, you may have to bring legal action against the Board to force them enforce the rules. Before that, however I recommend you retain an attorney to send the Board a warning letter.

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

-N.L., Estero

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 www.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: We own a corner unit on the top floor of a 3-floor condo building since 2011.  When Hurricane Wilma swept through in 2005, our building had lost a lot of soffits and subsequent attic insulation blew out as well. The soffits were repaired, but I believe the insulation loss was accidentally missed. We topped off the insulation 3 years ago to cover the area that was void at our own expense and a few other unit owners had as well over the years. Hurricane Irma with its 140+ MPH winds blew out approximately 50 feet of soffits on the 2 outside walls of our corner condo and completely removed approximately 6 feet of insulation from the soffit edge back into the attic around the exterior perimeter of the condo. There is a strong opinion that attic insulation is solely the responsibility of the owners on the top floor and it would be their personal financial obligation to replenish it, if so desired.  I believe that the attic insulation replenishment is part of the building’s responsibility as it is behind the drywall not to mention any water intrusion. Would you please share your valued opinion or fact? If there is any water based issues in the attic areas of the condos is that a unit owner issue or a building issue? No repairs have been performed to date pending insurance adjuster reviews which have just recently occurred.

Thank you in advance for your thoughts.

-G.K., Naples

A: According to Section 718.111(11) (f) Florida Statutes, the Association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications” EXCEPT “all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing.”  

This means that the Association insures everything except those items expressly excluded by the Statute, including but not limited to attic insulation.

When a covered item is damaged by an insurable event, such as Hurricane Irma, the Association must repair the item and pay any costs not covered by the insurance proceeds.

So, if the attic insulation was destroyed because of Hurricane Irma the Association must replace it.

This portion of the law controls over any contrary or different provision found in the Association’s governing documents.  The only exception would be if your Association “opted out” of the insurance statute which is unlikely as few Associations have done so.  

Q: If a long term (15-20yr) assessment is placed on a property (specifically a condo), does a Seller have to pay this off in closing or is the balance passed to the buyer. Thanks for your thoughts.

-V.T., Naples

A: It all depends on the agreement between the buyer and seller and what the Association will approve.  If a buyer of a condominium unit does not make sure all assessments have been paid current at closing then the buyer will be obligated to pay the assessments himself or herself.