TC Palm Q&A Column, December 3, 2017

By December 3, 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: My neighbor painted his house and claims the Association approved the request.  I can’t imagine the HOA would approve this color.  How can I confirm and/or challenge this?

T.R., Treasure Coast

A: As an owner, you are permitted to request access to the association’s official records.  You could provide a written request to the association requesting access to all architectural review applications and approvals in recent months, including this specific request.

If you find the application, you can confirm the requested paint color.  If the neighbor actually used a different paint color than the color included in the application, the association could pursue the owner for a violation of the covenants.

If the association approved the proposed paint color and the owner has a written approval from the association, you will be hard pressed to do anything about it because the neighbor relied on the association’s approval and expended funds and effort to paint the home and it would be inequitable to force the owner to do anything different after the fact.

It wouldn’t be the first time that an owner used a different color than what was included in the application, so that may be a good starting point.  I should also note that Florida law requires a homeowners association to maintain objective requirements for paint colors, and thus it is possible the association was forced to approve the request because it had no specific requirements to deny the request.  If this is the case, I would strongly urge the Board to adopt objective written specifications for exterior colors.

Q: My condominium Board is approving the 2018 budget and it is much higher than the 2017 budget.  The Board is arguing that it had to increase reserve contributions.  I was told that the membership had to approve big budget increases.  Is this true?

GH, Stuart

A: Not necessarily.  Florida law provides that the Board has broad jurisdiction over the operation and amounts included in the budget.  There is a provision that provides the membership with an opportunity to present a substitute budget where the Board’s proposed budget exceeds 115% of assessments for the previous fiscal year, and if so, the membership has a voice in the process.  Specifically, if the budget exceeds this threshold, 10% of the voting interest may petition the Board for a special meeting of the unit owners to consider a substitute budget presented to the Board.  At the meeting, if a majority of all voting interests approve the substitute budget, the substitute budget is adopted.

That being said, the statute also excludes reasonable reserve contributions from the calculation in determining the percentage increase in the budget.  So, if almost all of the 2018 increase is the result of greater reserve funding, there is likely no mechanism for the membership to veto or vote towards a substitute budget.

Of course, however unlikely, your particular Bylaws could contain a specific membership vote in this context so I would recommend having the governing documents reviewed by a licensed Florida attorney for the appropriate conclusion.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.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, 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.