TC Palm Q&A Column, August 6, 2017

By August 6, 2017News, Questions & Answers

Q: My condominium unit does not have a lot of natural light, and we have asked to install a skylight in the roof.  The condominium association has denied our request.  Is there anything we can do to compel the Board to approve our request?

-T.E., Stuart

A: In most condominiums, the roof is a common element and the Board of Directors is responsible to maintain, repair and replace the roof.  Further, most condominium documents prohibit an owner from altering the common elements without the Board’s approval and often require the membership to also approve the alteration.  If the Board allows a hole to be cut into the roof, the condominium may be assuming future maintenance and repair responsibility for the components of the skylight which comprise the roof.  In other words, the Board generally has a lot of discretion on whether to approve an alteration to the roof and, broadly speaking, the roof is one of the most expensive components of the common elements and you can understand why the Board would not want to assume any extra responsibility.

That being said, if the Board has approved a number of other skylights in the condominium and has denied your request, that denial may be arbitrary and you may be able to challenge the denial on the basis that the Board is selectively enforcing the covenants with respect to roof alterations.

Q: Our documents allow us to approve or deny prospective tenants based on criminal history.  We received an application from a tenant with over a dozen arrests for various misdemeanors and felonies, but there are no convictions for the related charges.  Can we deny this application?

-D.R., Tequesta

A: Likely not.  Assuming your documents provide a clear authority to deny tenants for prior criminal behavior, the general consensus in the legal community is that the criminal history must result in actual convictions and not just arrests.  In order to take away an owner’s right to lease to the owner’s preferred tenant, there must be good cause and the law essentially rests on “innocent until proven guilty” in this respect.   I would not recommend denying this prospective tenant unless there is another basis to do so.

Q: Our condominium pays a lot of money every year for a financial audit.  The Board keeps saying that we are required to obtain the audit, but I would assume an annual audit may be excessive.  Can we avoid the audit requirement?

-P.R., Vero Beach

A: The Florida Condominium Act requires various levels of annual financial reporting based on the size of the condominium and the size of the budget.  Before this year, the statute would allow the condominium to waive an audit, if required, for a maximum of three consecutive years with the intent of requiring an audit, if required, not later than every fourth year.  That statute, 718.111(15) was just amended to remove the limitation on waivers.   In other words, the condominium membership can now waive its annual financial reporting requirement indefinitely.  So yes, if the Board wants to waive the audit required by the statute, the membership may authorize the Board to forego the audit.

Nevertheless, it is possible that your condominium governing documents have self-imposed a requirement to obtain an audit, which would probably require the audit irrespective of the statutory waiver authority.  Further, it may be best practices to periodically or annually obtain an audit based on the condominium’s financial practices and history.