TC Palm Q&A Column, February 4, 2018

By February 4, 2018News, 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: We have a large elevator renovation project that is commencing. The Board is considering hiring a professional project manager who oversees elevator renovation projects. So, owners have indicated that they have experience with elevators having worked in the industry. They demanded that the Association retain them and use the “internal expertise” existing in the building members for free. Is this a good idea or even legal?

-E.W., Stuart

A: No, it is not a good idea and it is not legal. While there may be Association members that have the necessary experience to oversee such a project unless they are properly credentialed and currently licensed in Florida the Board not only should you not use them in lieu of a currently Florida licensed professional, the Board cannot do so. The Board has a fiduciary duty to the Association and its members to only hire qualified licensed professionals for such jobs. Failing to do so could lead to catastrophic liability for the Association and loss of insurance coverage should a problem arise in the future and persons were injured. Moreover, the Board’s D&O insurance would likely deny coverage for the Board in making such a decision. In short while you may utilize the “internal expertise” to interface with the licensed professional as part of an “elevator committee” you cannot use them in lieu of a properly Florida licensed professional.

Q: Can you please shed some light on my current dilemma? I could greatly benefit from any knowledge of the law you can provide, so as to protect myself and my property.

My condominium association has been consulting with a lawyer regarding our 30-year-old documents to determine the ownership of doors and windows in 96 units which are mostly in poor repair. The association’s lawyer says that the documents show that the association owns the doors and windows. There are some gray areas in the documents which may call this into question, so the association intends to hold a vote and let the majority rule.

When I bought my unit in 2006 the four large sliding glass windows had been upgraded by the previous owner to a high-quality hurricane impact glass. The price of the unit reflected this upgrade, being higher than other units. If the association takes ownership, they intend to raise fees to replace the doors and windows with hurricane impact glass. I have heard no mention of exemptions for owners who already have hurricane impact glass, only that it would be difficult for the association to make exceptions.

If the vote goes through, can the association legally seize more than $40,000 of my property? Can they legally charge me fees for something I already own and have paid for? I would effectively be paying for my neighbors’ windows, when no one helped me pay for mine. This seems very wrong. Is there any way I can protect myself? This move by the association, if it goes through, will cause excessive hardship.

-R.M., Fort Pierce

A: If you have code compliant hurricane rated sliding glass doors already installed then Section 718.115(1)(e) of the Condominium Act provides that you “shall receive a credit” when the Association installs impact glass or code-compliant windows or doors that comply with the current applicable building code. The “credit shall be equal to the pro rata portion of the assessed installation cost assigned to each unit.” However, such unit owner remains responsible for the pro rata share of expenses for hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection installed on common elements and association property by the board and remains responsible for a pro rata share of the expense of the replacement, operation, repair, and maintenance of such shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection.

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