TC Palm Q&A Column, December 10, 2017

By December 10, 2017News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: Can a homeowner’s association by its Declaration of Covenants set the amount of a Resale Capital Contribution and give its Board of Directors the power to change that amount from time to time or would such a change require an amendment to its Declarations?

W.S., Vero Beach

A: It depends on how the provision in the Declaration of Covenants is drafted.  If the provision gives the Board the authority to adjust the resale capital assessment then no amendment would be required.  If the provision in the Declaration fixes the amount without allowing for adjustment the provision would need to be amended.  Amendments to the Declaration almost always require a vote of the owners to be approved.

Q: A number of owners in our Condo Association have questions regarding a gift which was presented to our retiring Manager.  We, the owners, were never informed that the President and the Board (nine members total) voted to present a $5,000 gift to our outgoing Manager and a $3,000 gift to a maintenance employee.  Does the President and BOD members have the authority to award monetary gifts without discussion or knowledge of the owners?  When this question was asked at a Board Meeting, our President stated he has the right to spend $10,000 without any approval.  We the owners feel any such expenditure should be used for the betterment of the association.

B.A., Hutchinson Island

A: The Condominium Act Section 718.115(1)(a) provides that “common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property, costs of carrying out the powers and duties of the association, and any other expense, whether or not included in the foregoing, designated as common expense by this chapter, the declaration, the documents creating the association, or the bylaws.”  So, payment of salaries to a manager and maintenance person would be considered a proper common expense.  Performance bonuses or year-end bonuses are generally considered to be a part of the employee’s compensation, but this presumes the employee will continue to perform the job.  What you have described as a “gift” would not in my opinion be a proper use of assessments as gift giving is not typically identified in the governing documents as a common expense.  If the President claimed to have the authority to spend $10,000 without Board approval I would ask to see written documentation of such authority.   However, whether considered proper or not the decision to give the gift should have been made at a properly noticed meeting of the Board.  Under no circumstances should the fact that such expenditures occurred be kept from the owners.

Q: I live in an older condominium.  I live in an upper floor unit which by the way is separated from our downstairs neighbor with at least 8 inches of reinforced concrete.  Six years ago, I did an extensive renovation, including the master bathroom with new tile floors, new tile walk in shower and new fixtures throughout.  A few months ago, my first-floor neighbor complained about water staining his master bath shower ceiling which is directly below my shower. I have seen no signs of leaks or standing water anywhere in my unit.

Eventually, my neighbor opened his ceiling drywall and there was clear evidence that water was dripping from the shower trap that is located below the concrete floor and above his drywall ceiling.  I engaged a plumber to check for leaks, he first put a plug in my shower drain and filled the shower with 4 inches of water and let it sit for 48 hours; there was no signs of leaking below.

The plumber concluded that the trap itself was leaking and also concluded that it had not been installed in accordance with building code, even for the year it was constructed.  One can only imagine the headaches and cost of jack-hammering my shower floor and rebuilding the drainage system through my neighbor’s space.

I made inquiries to our managers about where the separation of common property and private property occurs.  They said under Florida law, the drain pipe is my responsibility all the way to the point where my neighbors drain pipe joins, it then becomes a common pipe and responsibility of the Homeowners Association.

I don’t know if this is correct.  It does not make logical sense to hold me responsible for repair and maintenance of property within a condominium that I have no right of access and no right of inspection.

K.G., Vero Beach

A: The responsibility for the maintenance, repair and replacement drain pipe you describe should be covered in the Declaration of Condominium.  It is fairly common that the Declaration will provide that such pipes that are located outside of the condominium unit but that only serve a single unit are the responsibility of the unit owner.  This is not always the case however so you need to check your documents.   If the Declaration does not address such single service items then you need to determine if the pipe in question is located outside of the legal boundary of the unit.  (It probably is since you said it was below the slab.)  Everything outside of the unit boundary would be common element which the Association is required to maintain and repair unless the Declaration expressly made the Unit owner responsible for the pipe.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC.  Ask questions about your issues for future columns, send your inquiry to: question@gadcllaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.