Naples Daily News Q&A Column, November 12, 2017

By November 12, 2017News, Questions & Answers

Q: Our condominium only hires licensed contractors. We always ask to see their license, but is there any way to confirm the license?

RT, Bonita Springs

A: This is a good practice. That being said, we routinely review contracts where the license number is not on the contract and the client never asks for it. The Florida Department of Business and Professional Regulation has a website (www.myfloridalicense.com) that has a very helpful search engine to verify most licenses.

Because general contracting licenses are difficult to obtain, many licensed contractors will “qualify” a business where the business does not have its own independent license. While this is common practice and legal, it is often not done correctly and the result is that you may be contracting with an unlicensed contractor. Also, note that the licensing requirement is not based on the name of the contract, but rather the nature of the work under the contract. If you are considering a contract to re-design a common space but the contract includes hiring subcontractors to perform construction work, you may be signing a construction contract even though it is labelled a design contract. It is important that the licenses match the work being done.

Q: Our condominium sustained some hurricane damage from Irma. My particular unit suffered damage to the lanai cage and the windows. The condominium association is telling me that I am responsible for the windows and the cage, but my insurance company is telling me the association is responsible. Who is responsible?

JW, Naples

A: I would need to know additional information to fully answer the question, but the condominium association is likely responsible to repair and replace the windows and the lanai cage. Florida Statutes section 718.111(11) generally provides that the condominium association is responsible to repair and replace property insured by the association, and the statute further provides that the association has extensive insurance requirements. Unless you installed highly upgraded windows or lanai components, the association should be insuring the windows and the lanai cage, and therefore the association is responsible to repair and replace the windows and lanai cage when damaged by an insurable event.

It is critical to note that the above analysis is only applicable when there is an insurable even such as a hurricane. The condominium association is likely relying on the declaration of condominium, and the specific delegation of responsibility in that document. It is very possible that your particular declaration of condominium makes the owners responsible for the windows and lanai cages for normal maintenance, repair and replacement, but the analysis is very different when the need to repair or replace is a hurricane event.

Further, the statute provides that the condominium membership can vote to “opt out” of the statutory delegation of responsibility. If such a vote occurred, the declaration of condominium may in fact be the controlling document. Thus, I would need to know some additional facts to properly answer the question, but the default answer would be that the association is responsible to repair these items damaged by a hurricane.

Q: Our homeowners association owns a marina with a seawall. Unfortunately, the sea wall was not insured and was damaged by Hurricane Irma. There is an owner in the community that is a retired engineer and has volunteered oversee the repair project. Is this legal?

TR, Marco Island

A: There are a few issues here. As discussed in the first question above, the Association should be engaging licensed and insured contractors. If this owner is a retired engineer, he may or may not maintain an active license and probably does not carry insurance. Because the engineer is usually charged with creating the specifications for the repairs, it is paramount that the engineer maintains sufficient insurance coverage in case of an error. The question also does not indicate the background of the retired engineer, but my experience has been that seawall and marine engineering is a somewhat specialized area. Thus, the proper license and insurance is very important.

Even assuming the owner is licensed and insured, it is very important that the owner have no relationship to any Director. The Florida Statutes recently changed in 2017 to essentially preclude the Board from engaging a vendor with a family or relational tie to any Director.

Thus, it is possible that this plan could work and provide significant savings to the Association, but not unless all of the safeguards of a traditional vendor relationship are present and even then many would still say it is a bad idea.

Q: Our condominium association uses pooled reserves and we also have annual audited financial statements. Our Board is telling us that the accountants do not audit the reserve schedule. I have sent a certified mail request to the association asking for these schedules to be audited. Must they comply?

BT, Bonita Springs

A: First, the Board is generally in control of the budget. Unless there is a significant increase in discretionary spending, the membership does not usually have a vote in the budget process. Here, if you have sent a certified mail request to the association, neither the Board nor the accountants have any legal obligation to comply with your request. Florida law provides a mechanism whereby the condominium association is required to provide a substantive response to a question, but not take action at your request.

Conversely, I should also point out that the annual financial audit does not generally advise whether the amounts on the reserve schedule are sufficient, but rather the audit determines whether the reserves were funded and logged properly. Because the accountant is not a contractor or engineer, he or she is not able to provide opinions whether the replacement cost or whether the remaining useful life is appropriate. Thus, it is very possible that the Board is telling you that it is not the auditor’s job to opine on the values or useful life in the reserve schedule.