Naples Daily News Q&A Column, July 9, 2017

By July 9, 2017News, Questions & Answers

Q: I know secret ballots must be used for members present to elect directors.  Just after the first of the year our condo association had to vote on a material alteration.  I attended the meeting rather than send a limited proxy so I could vote in secret.  But they would only give me a limited proxy to vote.  Shouldn’t I have been given a ballot?

A.I., Naples

A: No.  You are correct that in condominiums and cooperatives, as opposed to homeowner associations, secret ballots are required for electing directors.  In all other member votes the condominium and cooperative acts require that limited proxies “shall be used”.  A limited proxy is not secret.  

Q: I am an owner of a home in an HOA.  Our driveway (paver blocks) which we had installed about seven years ago has begun to sag and become wavy in many places.  Prior to having it replaced it was stamped concrete.  Unfortunately the company we used has since gone out of business.  We had another company give us an estimate to repair ($1,800).  They said it is possible that the sand and/or gravel were not compressed properly or it might be an irrigation problem.  I know for a fact our irrigation system runs beneath the driveway and it is possible it might be broken.  The HOA is responsible for all our irrigation issues.  If so, can the HOA be responsible for all or part of our repairs.  The home is twenty years old.

B.L., Bonita Springs

A: If the problem is being caused by an improper installation of the paver bricks it would be your responsibility to repair at your own expense.  If the problem is being caused by the community irrigation system, while the HOA would be responsible to fix the irrigation problem, it would not necessarily be obligated to repair the pavers.  While the HOA is responsible to maintain the irrigation system, if it was not aware that the system was broken and causing the pavers to sag, then it was not negligent in performing its maintenance obligations.  Conversely if the HOA knew or should have known the irrigation system was broken and did nothing to fix it then the HOA could be considered negligent and thus responsible to repair the pavers.  Negligence can be very difficult to prove in these types of cases.  So, the first step is to determine what is causing the problem in the first place.  This would be your obligation.  You can put the HOA on notice now that you suspect it could be the irrigation system and it may wish to observe the initial inspection.  

Q: I read your column in the Sunday paper and today there was a question about board members meeting in private without posting meeting.  I’m on a three member board and new to Florida rules.  My follow up question to your answer in today’s paper is:

Of the three of us on this board two of us are here full time.  For example, if we are getting bids for improvements to our association and we have contractors bidding on services can say two board members meet with respective companies to pursue our best options.  Then we meet as a board to review the options.  My feeling is two minds are better than one in securing best for the association.  It doesn’t make sense to me that one meet alone then the other board member meets alone with a prospective contractor to avoid potential issues regarding posting? It’s just doing best business practices.  Thank you for listening and response is welcome.

J.B., Estero

A: While you may consider it best business practices and it is certainly more efficient for two of the three directors to meet with the vendor together doing so constitutes a board meeting.  The law is clear on this point.  If a quorum of a board is together and they discuss association business it is considered a board meeting and must be noticed as such.  

Q: I understand there is a new estoppel letter law.  First, what is an estoppel letter exactly and what is the new law?

S.F., Naples

A: An estoppel letter is a letter that a potential buyer of a home in a condominium, cooperative or homeowner association controlled community receives prior to the sale.  The purpose of the letter is to inform the buyer if there are any outstanding amounts of money owed to the Association by the current owner/seller.  If there are outstanding amounts owed they buyer can require the owner/seller to bring the account current before the sale is closed.  This is important because if the sale closes without the account t being current then the new owner is obligated to pay the amounts.  Essentially, when you buy the home you are buying the sellers debt unless you insure it is brought current prior to the sale.  The estoppel letter also protects the buyer in that if the Association fails to disclose all of the debt in the letter the Association is estopped (i.e. prevented) from requiring the new owner to pay the debt.  Estoppel letters are also required when an owner is obtaining or refinancing a mortgage.  The estoppel letter law was amended and as of July 1.  A summary of the changes includes that the time to issue the estoppel letter is reduced from 15 calendar days to 10 business days.  The Association must designate on its website a person or entity to received estoppel requests.  Estoppel letters must contain certain enumerated information required by the statute.  A form letter is created in the Statute.  Estoppel certificate must be “good” for 30 days and 35 days if sent via regular mail.  Fee for issuing estoppel certificates is waived if the estoppel is not delivered within 10 business days.  The maximum fee for estoppel letters has been capped at $250.  An additional $100 may be added if an expedited estoppel is requested.  An additional $150 may be added if the account is currently delinquent.  If the estoppel certificate is issued for the owner of multiple units, then the max fee is capped.  The estoppel letter fee must be established by Board resolution or in the management contract.  Statutory fees will be adjusted for inflation every 5 years.  There are other requirements and an association should consult with its legal counsel to revise its estoppel letter policy and form to comply.