Naples Daily News Q&A Column, October 29, 2017

By October 29, 2017News, Questions & Answers

Q: Our Board of Directors of our Condominium has recently voted to sign a contract with Comcast that would provide cable and internet service for the entire community. I understand that under Florida condo law there is a provision that allows the membership to force a community wide vote to rescind that contract. Is this true? How does the membership exercise this right?  Thanks.

-S.B., Naples. FL

A: Yes, that is correct.  Section 718.115(1)(d) of the Condominium Act provides the following:

718.115(1)(d) If provided in the declaration, the cost of communications services as defined in chapter 202, information services, or Internet services obtained pursuant to a bulk contract is a common expense. If the declaration does not provide for the cost of such services as a common expense, the board may enter into such a contract, and the cost of the service will be a common expense. . . .

  1.  Any contract made by the board on or after July 1, 1998, may be canceled by a majority of the voting interests present at the next regular or special meeting of the association. Any member may make a motion to cancel the contract, but if no motion is made or if such motion fails to obtain the required majority at the next regular or special meeting, whichever occurs first, following the making of the contract, such contract shall be deemed ratified for the term therein expressed.”

So, if your Declaration of Condominium does not provide that bulk communications services are a common expense the Board can enter into a contract and make them so at a properly noticed Board meeting.  If the Owners disagree then no later than the next members meeting following the Board meeting the Owners can cancel the contract on a majority vote.  The Statute does not explain whether the vote is a majority of the total voting interest or just those voting at the meeting.  Typically, the Bylaws of the Association provide that votes of the owners that are not otherwise expressly discussed in the Bylaws or the Statute only require a plurality of those actually voting so that is a majority of those who actually vote.  The key here is the vote must be taken no later than the next members meeting, special or regular.  By the way the HOA Act, Chapter 720, provides the same rights for owners in homeowner associations.

Q: We had a lot of tree damage in our condominium from Hurricane Irma.  Our Board is telling us that the landscaping damage is not covered by the wind insurance carried by the Association.   As result they are telling us they may have to levy a special assessment.  Is this true?

-A.S., Marco Island

A: Every policy is different but I would be very surprised if the Association’s policy covered landscaping damage.  So, what the Board is telling you is likely accurate.  There may be a way to lessen the impact of the special assessment though.  State Law requires that all unit owner’s policy (commonly call an HO-6) must contain a $2,000 loss assessment coverage to cover a special assessment levied by the Association for which there are insufficient insurance proceeds.  So, it is possible that the Association can collect this money which may be sufficient to cover the special assessment.  The details of each owner policy can vary on this issue so it is not a simple transaction.  You should bring this to your Board’s attention right away.

Q: Our CAM recently sent an e-mail to all unit owners that the clubhouse would be closed to residents for three weeks, stating that the workers (outside contractors) cleaning up the property damage from hurricane Irma needed a place to eat/rest and the clubhouse would be closed for that purpose. Many scheduled activities are held in the clubhouse and the owners partaking of those activities were told to make other arrangements. Isn’t this an illegal act? Owners are upset and feel that the CAM and board president cannot close the clubhouse to owners to accommodate people who are non-owners. What is your advice?

-B.C., Bonita Springs

A: First and foremost, any decision to close the clubhouse for any purpose is a Board decision not the decision of the president or the manager.  With that said I believe the Board does have the authority to utilize the clubhouse for purposes in furtherance of activity that is necessary for the good of the community.  Cleaning up the hurricane debris certainly falls into this category.  If such closure disrupts the normal use of the clubhouse for a reasonable period of time I think the greater good of having the hurricane debris cleaned up would outweigh the other regular social uses of the clubhouse.

Q: I own a first-floor ground floor corner condo in a 100-unit building.  Built in 1970’s.  Both the drinking water and fire water lines run under my cement floor.  The lines have broken for the second time and flooded my unit.  The exposed pipes (about 4 ft under the concrete) look rusted and flaking.  They have fixed the pipe and poured new cement.  Is the condo association responsible for fixing up my unit?  Thanks for your time.

-T.K., Naples

A:  Your question raises several issues.  First, if the pipes failed suddenly without warning and flooded your Unit then likely this would be considered an insurable casualty loss and the Association’s insurance would cover the cost of repairing all damaged parts of your unit except floor coverings, wall coverings and personal property.  With that said, now that the pipes have failed twice and are very old the Association is likely on notice that this problem will reoccur if not beneath your Unit certainly others.  If the Association should reasonably be aware that the problem is going to continue to occur and does nothing to prevent it from happening (i.e. replacing the pipes), then the Association may be considered negligent in maintaining the common element property.  In such cases the Association would be responsible for the damage caused to your floor covering, wall covering and personal property and it is possible the that the Association property insurer may deny future claims because the failure was not an unforeseen accident.

Q: Our community is non-gated, and just under 100 units.  The board recently installed cameras around the community with a screen monitor in the office.  The purchase was voted by the 7-member board.  Without a board vote or discussion by other board members, nor the community, the three officers in private also decided they would connect their personal cell phones to the monitor.   It is like “big brother” is able to watch the “coming and goings” of the community.  Are there any legal issues with selected board members having this acsess out of the office of the complex?  It has also been reported on Facebook, that one board member watches the phone 24-7.   How can we be certain that access is deleted when they no longer serve the community?  Your thoughts will be most appreciated.

-H.W., Ft Myers.

A:  If your community is a Condominium the installation of cameras would be considered a material alteration of the common elements that would have to be approved by a vote of the owners unless your declaration provides otherwise.  If, however the Board could document a security need for the cameras then likely no vote of the owners would be required.  If your community is an HOA governed by Chapter 720, Florida Statutes no material alteration vote of the owners would be required and the Board could approve the installation.  As for who has access to the live feed from the cameras that would also be a Board decision.  While it may seem a little creepy for individual Directors to have the feed on their phones there is no expectation of privacy on the common areas so there is no invasion of privacy issues that I see.  The data from the cameras is likely an official record and the Directors who have the information would be required to turn it over to the Association once they are off the Board.