TC Palm Q&A Column, October 15, 2017

By October 15, 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: Our Board of Directors of our Condominium has recently voted to sign a contract with Comcast that would provide cable and internet service for the entire community. I understand that under Florida condo law there is a provision that allows the membership to force a community wide vote to rescind that contract. Is this true? How does the membership exercise this right?  Thanks.

-S.F., Treasure Coast

A:  Yes that is correct.  Section 718.115(1)(d) of the Condominium Act provides the following:

“718.115(1)(d) If provided in the declaration, the cost of communications services as defined in chapter 202, information services, or Internet services obtained pursuant to a bulk contract is a common expense. If the declaration does not provide for the cost of such services as a common expense, the board may enter into such a contract, and the cost of the service will be a common expense. . . .

1. Any contract made by the board on or after July 1, 1998, may be canceled by a majority of the voting interests present at the next regular or special meeting of the association. Any member may make a motion to cancel the contract, but if no motion is made or if such motion fails to obtain the required majority at the next regular or special meeting, whichever occurs first, following the making of the contract, such contract shall be deemed ratified for the term therein expressed.”

So, if your Declaration of Condominium does not provide that bulk communications services are a common expense the Board can enter into a contract and make them so at a properly noticed Board meeting.  If the Owners disagree then no later than the next members meeting following the Board meeting the Owners can cancel the contract on a majority vote.  The Statute does not explain whether the vote is a majority of the total voting interest or just those voting at the meeting.  Typically, the Bylaws of the Association provide that votes of the owners that are not otherwise expressly discussed in the Bylaws or the Statute only require a plurality of those actually voting so that is a majority of those who actually vote.  The key here is the vote must be taken no later than the next members meeting, special or regular.  By the way the HOA Act, Chapter 720, provides the same rights for owners in homeowner associations.

Q: We had a lot of tree damage in our condominium from Hurricane Irma.  Our Board is telling us that the landscaping damage is not covered by the wind insurance carried by the Association.   As result they are telling us they may have to levy a special assessment.  Is this true?

K.T., Jupiter

A:  Every policy is different but I would be very surprised if the Association’s policy covered landscaping damage.  So, what the Board is telling you is likely accurate.  There may be a way to lessen the impact of the special assessment though.  State Law requires that all unit owner’s policy (commonly call an HO-6) must contain a $2,000 loss assessment coverage to cover a special assessment levied by the Association for which there are insufficient insurance proceeds.  So, it is possible that the Association can collect this money which may be sufficient to cover the special assessment.  The details of each owner policy can vary on this issue so it is not a simple transaction.  You should bring this to your Board’s attention right away.

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.