Q: I am a Director in my condominium association and we are concerned about security. Neighboring communities have recently experienced criminal activity and we frequently have trespassers in the community. We want to install security cameras, but the owners do not want to pay for it and are claiming the members need to vote. Can we do this to protect our units?
-G.T., Bonita Springs
A: If the condominium association installs security cameras on the common elements, that is considered a material alteration because you would be adding a security measure and camera system to an area which previously had no such apparatus. The Florida Condominium Act requires membership approval for the Board to materially alter the common elements and most condominium documents provide a specific approval threshold.
There is an exception to having to obtain membership approval when the material alteration is also necessary to maintain the common elements. There are a number of arbitration cases on this topic and the underlying rule is that camera installation will not require membership approval if there is a tangible need for the cameras. In other words, a Board may not unilaterally install cameras just to make it “safer” but rather there must be recent criminal activity, trespassing or acts which are recent and may be prevented by the security measure. If there is no relevant necessity, the installation would likely require the membership’s approval before the Board could install the cameras.
Q: Weeks ago, our community levied a special assessment for Hurricane Irma damage and it is due next week. There are a few owners trying to sell their homes before the end of the year and there is disagreement over whether the buyer or seller is responsible to pay. Who is responsible to pay?
-B.A., Marco Island
A: There are a few parts to this answer. First, from the association’s perspective, the owner on the due date is responsible to pay the special assessment, even if there was a different owner when the assessment was actually levied by the Board, or if there was a different owner when Hurricane Irma came through.
Next, it is important to note that the specific contract between the buyer and seller will most likely address this issue. For example, some contracts provide that the buyer is responsible for special assessments levied after the contract is signed. Some contracts provide that the seller is responsible for all special assessments before the closing date. Others depend on whether the special assessment has actually been levied, or whether it is imminent. There is no single contract used in all transactions, so the Association should refer the buyer and/or seller to their respective agents and attorneys to determine who is required to pay the special assessment under the contract.
Finally, in connection with any real estate closing, the closing agent will request an estoppel from the association. In this document, the Association discloses a significant amount of information, but the relevant information is that the Association must disclose the amount of any outstanding assessments. The estoppel should also ask whether there are any special assessments. Although the Florida legislature recently adopted a form estoppel language, it is not being used by all associations or title companies, and thus the question on the estoppel concerning special assessments may be vague or missing altogether. It is important that the Association properly disclose any pending special assessment based on the question posed in the estoppel so that the buyer and seller can properly delineate responsibility and so that the Association is not precluded from recovering the association if it becomes due after closing.
Q: Our HOA Board just adopted a rule limiting the weight of large dogs. I am looking to adopt a large dog and was planning to adopt this dog before I moved into the community. Does the Board have a right to adopt this weight limit? Am I grandfathered?
A: This is a common question and I should initially note that it requires a review of the specific language in your covenants. In other words, the answer is very dependent on the word for word reading of your specific governing documents and each community has slightly different language.
The general rule is that the Board has the authority to adopt rules. First, to be valid, the governing documents must authorize the Board to adopt rules. Although some governing documents allow the Board to adopt rules, the language varies and can provide very limited authority or very broad authority.
Second, the rule must be related to the welfare of the community. Generally, dog weight would be considered relative to the welfare of the community if the Board has any reasonable cause to adopt the rule.
Finally, the rule can’t be more restrictive than an express or implied right in the Declaration. For example, if the governing documents specifically provide that owners can have 2 dogs, the express right is that owners can have 2 dogs, but the implied right is that you can have 2 dogs of any size. If this is the case, the rule would be invalid because the Board is amending the rules in a way that is more restrictive than an implied right in a controlling document (the Declaration). There are many other factors that are relevant when interpreting pet restrictions, and therefore I would ultimately recommend you have the covenants reviewed by a licensed Florida attorney.
With respect to grandfathering, if the rule is invalid, it would not apply. If the rule is valid, and the rule is enforceable prior to your adoption of the large dog, you would be prohibited from keeping the large dog. If you adopt the large dog prior to the rule being effective, you would most likely be able to keep the dog based on an equity argument.