TC Palm Q&A Column, May 27, 2018

By May 27, 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: I purchased a new home in October of 2017. The association is planning to levy a one-time special assessment for damages due to Irma.  We were not the owners of record in September of 2017 and I question whether or not we should be held responsible for damages incurred prior to our purchase date.  We are told that the assessment applies to each “door” in the community.

-J.B., Jupiter

A: A special assessment is payable by all owners as of the day the assessment is levied by the Board.  So even though you did not purchase your home until after the hurricane and the assessment is for damaged caused by the hurricane you are obligated to pay it.

Q: Proxy votes.  At the annual meeting, if the proxies are not signed can they be used for any purpose?

-M.W., Vero Beach

A: No. An unsigned proxy is not valid for anything and cannot be used for any purpose at all.

Q: The association is replacing the roof. We received a ballot to change from flat to barrel, however there are several inconsistencies (by some of our views).  1) the picture is not the same roof as proposed; 2) the current roof is concrete and the proposed is steel; 3) the color is significantly different from the current color.  However, the ballot only asks: should the roof be changed from flat to barrel? We believe this is an error.

-K.C., Hutchinson Island

A: I agree with you. Material alterations are a palpable, perceptible change in use, form, function, material or color. In this case there are three material changes being made. 1) Flat roof to barrel tile; 2) Color; and 3) Material, concrete to metal.  The question should specifically identify these elements and the picture should be a reasonable representation of the finished product.

Q: Our condo village has had a No Pet rule for about 50 years. Our current board is allowing dogs in.  They say the laws have changed and they cannot stop the rapid influx of dogs. No one is objecting to certified service dogs.  It is the “so called” comfort dogs and therapy dogs that are the problem. They are clearly just pets and are causing numerous problems.  What, specifically, can be done to protect our village from becoming a kennel?

-E.L., Vero Beach

A: As long as the person has the minimal documentation from a doctor or other quasi-medical professional such as a therapist there is almost nothing an Association can do to stop people from using the assistance animal/emotional support animal exception to circumvent the pet rules.  This is a very frustrating time for Associations trying to enforce pet rules but until the law changes to remove the assistance animal exception there is little that can be done.

Q: The Declaration of Covenants does not give any authority to our Association to approve or deny renters or buyers.  There are a couple of rules on frequency and length. Can the Association just randomly create a rule to start approving or denying renters or buyers even though it’s not in the Declaration?

-J.A., Port St. Lucie

A: No. The authority to approve and disapprove renters and buyers must be expressly granted in the Declaration.

Q: Can the Association put restrictive Board adopted rules in place on renters, but not on its owners.  I was always under the impression that owners’ rights are passed on to their renters (within reason).  Example, can the Association deny homeowners the ability to rent their homes to people with dogs even though the owner has the right to have a dog?

-H.B., Sebastian

A: While some attorneys and at least one “outlier” arbitration decision believe this is legal, I do not.  Board adopted rules cannot discriminate between Owners and Renters, in my opinion. However, recorded regulations in the Declaration can do so.  So, if you want to prohibit renters from having pets it must be done with an amendment to the Declaration, in my opinion.

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.