Declaration = Declaration of Condominium

Division of Condominiums = Division of Florida Land Sales, Condominiums and Mobile Homes

FAC = Florida Administrative Code

Office of Ombudsman = Office of the Condominium Ombudsman ; 

s. = section of the Florida Statutes   

ALTERATION OR ADDITION 

A material alteration of the common elements is covered by Florida Statutes Section 718.113(2) and permitted in a manner provided in the Declaration of Condominium. If the Declaration is silent regarding material alterations, an affirmative vote of 75% of unit owners is required.

           A material alteration or addition means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design, plan, or existing condition, in such a manner as to appreciably affect or influence its function, use or appearance.

AMENDMENTS TO DECLARATION AND BYLAWS

To amend the Declaration, refer to the section regarding amendments in your Declaration of Condominium, your Bylaws, and Florida Statutes Section 718.110.  If the Declaration or Bylaws fails to provide a method of amendment, two-thirds of the unit owners must approve it.  No more than four-fifths requirement is permitted unless it changes the percentage or proportion by which the unit owner shares the common expenses, or permits timeshares, which requires 100% approval. 
           Bylaw amendments are covered in your Bylaws or in Florida Statutes Section 718.112(1).

ASSESSMENTS

   
           "Assessment" means a share of the funds that are required for the payment of common expenses, which from time to time is assessed against the unit owner.  {See Florida Statutes Section 718.103(1).}

Special Assessments

The Declaration of Condominium and Bylaws govern special assessments.  Most state that a special assessment has to be either approved by a majority of the Board of Directors or by a vote of the Association.  If the Association has to approve the assessment, it may be done by a vote of the members. 

Notice Of Assessment

"Notice of any meeting in which regular assessments against unit owners are to be considered for any reason shall specifically contain a statement that assessments will be considered and the nature of any such assessments." {See Florida Statutes Section 718.112(2)(c).}  

The specific purpose of a special assessment shall be set forth in the written notice.  The funds collected shall be used only for that purpose.  Any excess will be common surplus to be returned to the unit owners or applied as a credit.  {See Florida Statutes Section 718.116(10).}

AUDIT and REVIEW

An audit provides the highest level of assurance that an association’s financial statement complies with generally accepted accounting principles (GAAP).  An unqualified audit opinion (one without caveats) expresses reasonable assurance that the financial statements contain no material misstatements.  To reach this opinion, the CPA must examine the association’s statements and documents supporting the amounts and disclosures. The accountant must also access the association’s accounting systems and the internal controls it uses to report transactions. To issue an audit report, the CPA is usually required to be independent of the association.

A review is less extensive than an audit, but more involved than a compilation (the third choice).  A review doesn't require the accountant to study and evaluate internal controls, verify data with third parties, or physically inspect assets.  Rather a review report expresses limited assurance in the form of a statement.  To perform a review, a CPA needs to possess a general knowledge of the accounting principals and practices of the association’s industry, as well as an understanding of its business.  If the financial statements appear inconsistent or questionable, the accountant may perform additional procedures.

BIDS 

   
           Florida Statutes Section 718.3026 requires competitive bids for materials, equipment or services, if the required payment exceeds 5% of the annual budget, including reserves. The association does not have to accept the lowest bid. 

Florida Statutes Section 718.3026.   Contracts for products and services; in writing; bids; exceptions.--Associations with less than 100 units may opt out of the provisions of this section if two-thirds of the unit owners vote to do so, which opt-out may be accomplished by a proxy specifically setting forth the exception from this section. 

(2)(a)1. Notwithstanding the foregoing, contracts with employees of the association, and contracts for attorney, accountant, architect, community association manager, timeshare management firm, engineering, and landscape architect services are not subject to the provisions of this section.

BOARD DUTY

The board has an affirmative duty to keep the common elements and the condominium property in a state of good repair.  {See Florida Statutes Section 718.111(4).}

The board has the authority to borrow funds from a bank and then to levy a special assessment to repay the loan without the vote of the membership unless the documents provide to the contrary. The board may pledge a special assessment for repayment of the loan.  {See Florida Statutes Section 617.032(7).}

If the association wishes to mortgage its real property, approval of 75% of the total voting interests is required unless the Declaration provides otherwise. {See Florida Statutes Section 718.111(7).}

See as well BOARD ELECTIONS!

CIVIL RIGHTS VIOLATIONS    (See Discrimination.) 

Contact the Florida Commission on Human Relations (850) 488-7082.

 www.fchr.state.fl.us

Call (800) 440-8091 or (888) 341-7781 for Federal Fair Housing.

COMMITTEES

If the Declaration or Bylaws do not prescribe a method by which committees are selected, the method can be decided by majority vote or unanimous consent at the time the committee is appointed.  There are several ways this can be done. 
1.  Election by ballot (as in election of officers, a majority is necessary); 

2.  Nominations from the floor (open nominations) with viva-voce (by mouth) election; 
3.  Nominations by the Chair (to be voted on); 
4.  Appointment by the Chair; OR
5.  Appointment by adoption of a motion naming members of a committee. 

COMMON ELEMENTS & LIMITED COMMON ELEMENTS

"Common elements" means the portions of the condominium property not included in the units or as defined by the documents.  {See Florida Statutes Section 718.103(3).} 

“Limited Common Element” means those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration.   {See Florida Statutes Section 718.103(19).}

“Common expenses”  {See Florida Statutes Section 718.115.}

Multicondominium expenses   (See Multicondominium.)

The common expenses of a condominium within a multicondominium are the common expenses directly attributable to the operation of that condominium.  {See Florida Statutes Section 718.115(1)(b).}

Maintenance of the common elements is the responsibility of the association. 

Florida Statutes Section 718.113(1).  The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements.

           Obligations Regarding Maintenance of Common Elements

Maintenance of the common elements.  Pursuant to Florida Statutes Section 718.113(1), the maintenance of the common elements is the responsibility of the association. The common elements are defined as the portions of the condominium property not included in the units or as modified by your individual documents.  {See Florida Statutes Section 718.103(3).} 

Limited common elements are those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, and as specified in your Declaration.  {See Florida Statutes Section 718.103(19).}

To determine the responsibility for the maintenance of certain property elements, it must first be determined from the Declaration and the Florida Statutes whether it is a common element or a limited common element.

If it is determined to be a limited common element, it must then be determined from the Declaration and Florida Statutes whether the responsibility is that of the association or that of the unit owner or both.

Maintenance of limited common elements.  Pursuant to Florida Statutes Section 718.113(1), the Declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance. 

The Declaration may provide that the maintenance be either as a common expense to all unit owners, or by shared cost to those entitled to use those limited common elements. The Declaration shall describe in detail the method of apportionment. 

   
           Common Element Possession And Use. A unit owner is entitled to use the common elements in accordance with the purpose for which they are intended.   {See Florida Statutes Section 718.106.}

COMMUNITY ASSOCIATION MANAGER ( CAM ) 

  
           There is no requirement in the law that any association is required to have a manager.  But if the association has over 50 units or has a budget of over $100,000 and it does hire a manager, the manager must be licensed.  {See Florida Statutes Chapter 468.} 

FAC 61B-23.001(4).  In furtherance of its fiduciary duty to the unit owners, a board of administration shall employ only a licensed community association manager where licensure is required by Section 468.431, Florida Statutes.

How To File A Complaint Against A CAM

Complaints against the regulated professions may be filed with the Department of Business and Professional Regulation. http://www.myflorida.com/dbpr/dbpr/le_portal/dbpr-0070-1.pdf

COMPENSATION to Board Members

Unless provided otherwise in the Bylaws, the directors and officers shall serve without compensation.  {See Florida Statutes Sections 718.112(2)(a) and 718.111(1)(a).}
           Officers and Directors cannot be compensated for their positions, as such, unless stated otherwise in the “documents.”  They may receive compensation for other work that they perform, if authorized by the Board of Directors.

COMPLAINT AGAINST A CONDOMINIUM

You may file a complaint with the DBPR, Division of Condominiums.  Forms online: http://www.myflorida.com/dbpr/lsc/division/LSCMHComplaintFormIndex.html

 The Office of the Ombudsman may be able to mediate the problem before a complaint is filed. Ombudsman@dbpr.state.fl.us.
           Alternate dispute resolution.   If you meet the requirements, you may seek a solution provided by Florida Statutes Section 718.1255.

CONDO CONVERSIONS   

Condo conversions pose unique contractual and statutory legal problems. Consultation with an attorney is recommended.  {See Florida Statutes Sections 718.604 –622.}

  
DAMAGES TO YOUR UNIT 

If you discover damage to your unit from any source known or unknown, you must immediately notify your homeowner’s insurance policy carrier, the association, and any other unit owner who may be involved. Your insurance carrier will give you instructions. 

If your damage was caused by a common element problem and there was negligence on the part of the association in dealing with the problem, it would be the association’s liability.  Without negligence, the association is only responsible for the common area damage as set forth in your Declaration of Condominium and Bylaws under “Maintenance and Repair.”

DEMAND, NOTICE, OR INQUIRY LETTER

   
           In order to officially bring an issue to the attention of the board of directors you must make a written inquiry by certified mail to the Board of Directors, pursuant to Florida Statutes Section 718.112(2)(a)2.  The failure to provide a substantive response to the inquiry within 30 days precludes the board from recovering attorney's fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry.  If you do not receive a substantive response after 30 days, you may seek help from the Office of the Ombudsman at Ombudsman@dbpr.state.fl.us, file a lawsuit, or file a complaint with the Division of Condominiums.  You may find the official condo complaint form online at http://www.state.fl.us/dbpr/lsc/condominiums/forms/complaint.pdf 

Alternate dispute resolution.   If you meet the requirements, you may seek a solution provided by Florida Statutes Section 718.1255.

DEVELOPER TURNOVER

The situations that arise after you purchase from a developer have specific statutory, contractual and time requirements. The unit owners should contact an attorney as soon as possible in order not to be excluded by these time limitations in which to make a claim.  

Deposits and Warranties are covered in Florida Statutes Section 718.202-203.   {See also Florida Statutes Sections 718.502 et seq. FAC 61B-23.003.}

Transition Financial Statements and Turnover Audit.   {See FAC 61B-22.0062.}

DIRECTOR BOARD ELIGIBILITY

The Bylaws of the association specify and provide the eligibility requirements for the members of the board of administration.  {See Florida Statutes Section 718.112 (2)(a).}  

Florida law does not require individual board members to be a member of the association to be eligible for election to the board, but most association Bylaws do impose a membership requirement for eligibility.  Joint ownership of a unit does not prevent both owners from being candidates. 

When a corporation or other type of entity owns a unit, eligibility to be a representative of the unit to serve on the board of administration must be permitted by the Bylaws. The designated voting representative of the corporation may then be eligible to serve as a member of the board.  If eligibility is contingent on association membership, then the unit may be effectively excluded from offering a candidate for the board since a corporation cannot sit as a member of the board.  {See Florida Statutes Section 617.0802.}  

An exception to this eligibility standard is made “when the unit is owned by a trust…”

DISCRIMINATION  (Age 55 Or Older Communities) 

The Housing for Older Persons Act of 1995 exempts those communities from prohibition against discrimination because of familial status and age. To be exempt the association must demonstrate three factors: 
(1) That the housing is intended and operated for persons 55 years of age or older;                                

(2) That at least 80% of the occupied units be occupied by at least one person who is 55 years of age or older; and 
(3)  The housing facility or community publish and adhere to policies and procedures that demonstrate its intent to qualify for the exemption.

The association must conduct and maintain adequate surveys every two years and establish that at least one occupant is age 55 or older in at least 80% of the units. If this is not done, it may incur liability if it refuses to allow persons under 55 to live in or purchase a unit in the condominium under discrimination law.  Not all members must be 55 or older.

If your community is restricted to housing for older aged persons, then your community is required to register upon its initial designation as a community for older aged persons and file a report every two years on the anniversary of the first day of the month in which the community originally filed. The address for the filing is now: Florida Commission on Human Relations, Post Office Box 3388 Tallahassee , FL 32315-3388 .

Florida Commission Human Relations www.fchr.state.fl.us 

Vicki Johnson   (850) 488-7082   (954) 712-4605

www.fairhousingflorida.com  (561) 533-8717.

Federal Fair Housing  (800) 440-8091 or (888) 341-7781

DISSATISFACTION OR MISMANAGEMENT

The Office of the Ombudsman is unable to impose a timetable or conditions with respect to how your Condominium Association complies with State Law and the Association's Declaration, Bylaws and Rules, as long as it is in reasonable compliance with them.

A grievance that management of a condominium does not perform its duty fast enough to satisfy some of the Unit Owners is not within the jurisdiction of the Office of the Ombudsman, as long as Management acts reasonably. 

Unit Owners might consult with their personal attorney in the event they sustain personal injuries or are otherwise damaged as a result of Management’s negligence or refusal to reasonably comply with Florida Statutes, or the Condominium Declaration, Bylaws or Rules.  If Unit Owners are dissatisfied with Management, they should consider a recall.

ELDER ABUSE

Children and Families (800) 962-2873
Agency for Health Care Administration (850) 487-2515
Gov. Citizen Service (850) 922-4964
Federal Fair Housing (800) 440-8091 or (888) 341-7781 

ELECTION MONITOR 

The Office of the Ombudsman can provide you with an election monitor, pursuant to Florida Statutes Section 718.5012(9).  The monitor can conduct the election for your association.  Fill out a Petition and mail it to the Ombudsman requesting an Election Monitor with the signatures of 15% of the unit owners, and the other pertinent information such as time, date, place, number of directors to be elected, units and name of the association. Also include name and address of the condominium, its management company and its attorney. The Association should ultimately pay the monitor.  A form will be sent to you to upon request.

FAC 20B-23.0021(1)(d)8 states that the envelopes should be mailed to an entity designated to receive the ballots. After you are timely appointed an election monitor, the monitor may request that the board have the ballot envelopes mailed to the Condominium Ombudsman.  The election monitor will then bring the ballot envelopes to the election. The election monitor is able to conduct the entire election process for the association, if requested.

ELECTIONS 

There is a set procedure for condominium elections in the Florida Administrative Code 61B-23.0021 and Florida Statutes Section 718.112(d)3. 
For more details please see:

Board Elections

CANDIDATE CERTIFICATION FORM

             The 60-day election notice shall include a CERTIFICATION FORM provided by the Division attesting that candidates for board membership have read and understand, to the best of his or her ability, the governing documents of the association and the provisions of this chapter and any applicable rules. This form has to be signed and sent to the association by each candidate not less than 35 days before the election.

ESTOPPEL CERTIFICATE

Within 15 days after receiving a written request therefor from a unit owner purchaser, or mortgagee, the association shall provide a certificate signed by an officer or agent of the association stating all assessments and other moneys owed to the association by the unit owner with respect to the condominium parcel. Any person other than the owner who relies upon such certificate shall be protected thereby. A summary proceeding pursuant to s. 51.011 may be brought to compel compliance with this subsection, and in any such action the prevailing party is entitled to recover reasonable attorney's fees. Notwithstanding any limitation on transfer fees contained in s. 718.112(2)(i), the association or its authorized agent may charge a reasonable fee for the preparation of the certificate.  {See Florida Statutes Section 718.116(8).}    

FEES 

Use Fee

The association may not charge a use fee against a unit owner for the use of the common elements unless the charges relate to expenses incurred by an owner having exclusive use of the common elements or association property.  {See Florida Statutes Section 718.111(4).}

Transfer Fee  

No charge shall be made by the association in connection with the sale, mortgage, lease, or sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant.  However, if the lease or sublease is a renewal of a lease with the same lessee, no charge shall be made.  {See Florida Statutes Section 718.112(2)(i).}

Late Fee

Assessments and installments on them which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. This rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest shall accrue at the rate of 18 percent per year. Also, if the declaration or bylaws so provide, the association may charge an administrative late fee in addition to such interest, in an amount not to exceed the greater of $25 or 5 percent of each installment of the assessment for each delinquent installment that the payment is late. {See Florida Statutes Section 718.116(3).}

Information Fee 

The association or its authorized agent may charge a reasonable fee to the prospective purchaser, lienholder, or current unit owner for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney's fees incurred by the association in connection with the response.  {See Florida Statutes Section 718.111(12)(e)1.}

FINANCIAL REPORTING 

Florida Statutes Section 718.111(13) and FAC 61B-22.001 through 61B-22.0062 govern financial reporting requirements.

FINES

A fine is permitted only if the Declaration or Bylaws so provide and a notice and opportunity for a hearing is provided. Fines are not to exceed $100 per violation or up to $1000 for a continuing violation. 

No fine will become a lien against a unit.

In order for the association to levy a reasonable fine against a unit owner the Declaration or Bylaws must permit such an action; the unit owner is provided proper notice of a hearing on the matter; the hearing is held before a committee of other unit owners; and the committee recommends the appropriate action. {See Florida Statutes Section 718.303(3).}

HURRICANE SHUTTERS 

  
           Each board of administration shall adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include color, style, and other factors deemed relevant by the board. All specifications adopted by the board shall comply with the applicable building code. Notwithstanding any provision to the contrary in the condominium documents, if approval is required by the documents, a board shall not refuse to approve the installation or replacement of hurricane shutters conforming to the specifications adopted by the board. The Board may upon approval of a majority of the unit owners install hurricane shutters and may maintain, repair, or replace them whether on common property, limited common elements or association property. The board may adopt hurricane shutter specifications. A board shall not refuse to approve the installation or replacement of hurricane shutters.  {See Florida Statutes Section 718.113(5).} 

Florida Statutes Section 718.115(1)(e). The expense of installation, replacement, operation, repair, and maintenance of hurricane shutters by the board pursuant to s. 718.113(5) shall constitute a common expense as defined herein and shall be collected as provided in this section. Notwithstanding the provisions of s. 718.116(9), a unit owner who has previously installed hurricane shutters in accordance with s. 718.113(5) or laminated glass architecturally designed to function as hurricane protection which complies with the applicable building code shall receive a credit equal to the pro rata portion of the assessed installation cost assigned to each unit. However, such unit owner shall remain responsible for the pro rata share of expenses for hurricane shutters installed on common elements and association property by the board pursuant to s. 718.113(5), and shall remain responsible for a pro rata share of the expense of the replacement, operation, repair, and maintenance of such shutters. 

INQUIRY, DEMAND, OR NOTICE LETTER 

           In order to officially bring an issue to the attention of the board of directors you must make a written inquiry by certified mail to the Board of Directors, pursuant to Florida Statutes Section 718.112(2)(a)2.  The failure to provide a substantive response to the inquiry within 30 days precludes the board from recovering attorney's fees and costs in any subsequent litigation, administrative proceeding, or arbitration arising out of the inquiry.  If you do not receive a substantive response after 30 days, you may seek help from the Office of the Ombudsman at Ombudsman@dbpr.state.fl.us, file a lawsuit, or file a complaint with the Division of Condominiums.  You may find the official condo complaint form online at http://www.state.fl.us/dbpr/lsc/condominiums/forms/complaint.pdf 

Alternate dispute resolution.   If you meet the requirements, you may seek a solution provided by Florida Statutes Section 718.1255.

INSURANCE   

The association must maintain adequate insurance to protect the property.  It shall cover 
1. All portions of the condominium property located outside the units; 
2. The condominium property located inside the units as such property was initially installed, or replacements thereof of like kind and quality and in accordance with the original plans and specifications or, if the original plans and specifications are not available, as they existed at the time the unit was initially conveyed; and 
3. All portions of the condominium property for which the declaration of condominium requires coverage by the association.

The individual unit owner shall insure all real or personal property located within the boundaries of the unit owner's unit, which is excluded from the coverage to be provided by the association as set forth above.  {See Florida Statutes Section 718.111(11).} 

Casualty Coverage

The association must have a master insurance policy for adequate insurance to cover serious damage to the common elements.  It is the Board’s decision to determine how much deductible the association requires under the master policy.  If the policy’s limits do not cover the total amount of the damages, the association is then obligated to specially assess the unit owners to cover the damages that are not covered by the master policy. 

The individual owners are ultimately responsible for the deficit and assessment that is not covered by the association's policy for the common elements.  Bear in mind that the obligations of the association are funded by the individual unit owners' maintenance payments.

Your Master Insurance Policy (hazard insurance) is to cover, up to its limits and less the deductible, all damage to the common elements and each unit due to a casualty.  (Each Declaration of Condominium and each Insurance Policy must be reviewed.) 

The premises shall be repaired or reconstructed to substantially the same condition existing immediately prior to the casualty and substantially in accordance with the original plans and specifications of the condominium and any subsequent modifications thereto. The extent of this damage should be determined within 60 days after the casualty. 

Florida Statutes Section 718.111(11) only governs your current insurance obligations.

If there are damages to the common elements, limited common elements, and individual units that exceed the policy limits of your Master Policy, your association must obtain the balance exactly as stated in your Declaration of Condominium under casualty loss. The balance may be obtained by use of reserves and by special assessment to unit owners. 

If the Board refuses to pursue its claim against the master policy insurer, you must send a certified letter to the Board with an “inquiry” (demand), pursuant to Florida Statutes Section 718.112(2)(a).  If the Board refuses to answer within 30 days, you may seek legal action against the association and the board of directors, pursuant to Florida Statutes Chapters 617 and 718.

If the master policy insurer refuses to comply with its contract with the association, you should contact the Florida Department of Financial Services at (800) 342-2762 or at www.fldfs.com.  

You may also qualify for assistance from FEMA and the IRS (800) 829-3676

LATE FEE 

Assessments and installments on them which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. This rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest shall accrue at the rate of 18 percent per year. Also, if the declaration or bylaws so provide, the association may charge an administrative late fee in addition to such interest, in an amount not to exceed the greater of $25 or 5 percent of each installment of the assessment for each delinquent installment that the payment is late.  {See Florida Statutes Section 718.116(3).}

LEASE DISAPPROVAL

A lease agreement that is subject to association may be disapproved because of an assessment delinquency.  {See Florida Statutes Section 718.116(4).} 

LIMITED COMMON ELEMENTS 

 “Limited common elements” means those common elements which are reserved for the uses of a certain unit or units to the exclusion of all other units, as specified in the declaration.  {See Florida Statutes Section 718.103(19).}

 
           The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements… If the maintenance is to be provided by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportionment and may use 718.116 to enforce payment.  {See Florida Statutes Section 718.113.} 

MEETINGS 

There are three types of meetings:  Annual meeting with election meeting; special membership meeting; and Board of Directors meeting.    

At the Annual Meeting there will be the election meeting. To establish a quorum at the annual meeting, there must be a majority of unit owners present in person or by proxy before business can be transacted.  Florida Statutes Section 718.112(2)(b) provides that "unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be a majority of the voting interests." 

The Election Meeting does not require a quorum of members to take place.  It only requires that 20% of the unit owners cast ballots to have an official election.

The Special Membership Meeting can be called according to Florida Statutes 718 for alternate budgets, when the proposal is over 115%, and/or to cancel a TV Cable contract.  Provisions in the Declaration or Bylaws can allow for special membership meetings.

Board Of Directors Meeting

Board of administration meetings.--Meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners. Any unit owner may tape record or videotape meetings of the board of administration.  {See Florida Statutes Section 718.112(2)(c).}

Right To Speak  

The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The association may adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements. 

All meetings shall be open to all unit owners except meetings between the board and the association’s attorney, with respect to proposed or pending litigation, when the meeting is held for the purpose of seeking or rendering legal advice.  

Board meetings require a quorum of directors to be valid for the directors to conduct official business.   {See Florida Statutes Section 718.112(2)(c).}

“In the absence of a quorum, any business transacted (except for the procedural actions noted in the next paragraph) is null and void…The prohibition against transacting business in the absence of a quorum cannot be waived even by unanimous consent.”  {From Robert’s Rules of Order, Chapter XI – QUORUM: Proceedings in the Absence of a Quorum.}

  
           A meeting of the board of administration means any gathering of the members of the board of directors, at which a quorum of the members is present, for the purposes of conducting association business.   {See FAC 61B-23.001(1)(a).}

The bylaws shall provide the method of calling meetings of unit owners, including annual meetings. Written notice, which notice must include an agenda, shall be mailed, hand delivered, or electronically transmitted to each unit owner at least 14 days prior to the annual meeting and shall be posted in a conspicuous place on the condominium property at least 14 continuous days preceding the annual meeting.   {See Florida Statutes Section 718.112(2)(d)2.} 

Adequate notice of all meetings, which notice shall specifically incorporate an identification of agenda items, shall be posted conspicuously on the condominium property at least 48 continuous hours preceding the meeting except in an emergency.   {See Florida Statutes Section 718.112(2)(c).}

Florida Statutes Section 718.112(2)(c).  Meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners.
Meetings of a committee to take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to the provisions of this paragraph. Meetings of a committee that does not take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to the provisions of this section, unless those meetings are exempted from this section by the bylaws of the association. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners is inapplicable to meetings between the board or a committee and the association's attorney, with respect to proposed or pending litigation, when the meeting is held for the purpose of seeking or rendering legal advice.

MINUTES

“They should contain mainly a record of what was done at the meeting not what was said by the members. The minutes should never reflect the secretary's opinion, favorable or otherwise, on anything said or done."  By including only certain remarks, the secretary is editorializing. This is not fair or proper.  {From Robert’s Rules Of Order, Minutes And Reports Of Officers.}

Committee Meeting Minutes

According to Peter Dunbar in The Condominium Concept, if a committee is advisory in nature a formal record of the proceedings does not need to be maintained.  If the committee has substantive authority and is carrying out a portion of the responsibilities of the board, a formal record of each meeting must be kept in the same way as the board itself maintains records of its proceedings. 

MISMANAGEMENT OR DISSATISFACTION 

The Office of the Ombudsman is unable to impose a timetable or conditions with respect to how your Condominium Association complies with State Law and the Association's Declaration, Bylaws and Rules, as long as it is in reasonable compliance with them.

A grievance that management of a condominium does not perform its duty fast enough to satisfy some of the Unit Owners is not within the jurisdiction of the Office of the Ombudsman, as long as Management acts reasonably. 

Unit Owners might consult with their personal attorney in the event they sustain personal injuries or are otherwise damaged as a result of Management’s negligence or refusal to reasonably comply with Florida Statutes, or the Condominium Declaration, Bylaws or Rules.  If Unit Owners are dissatisfied with Management, they should consider a recall.

MORTGAGE OF COMMON ELEMENTS

    
           The association may mortgage association property in the manner provided in the declaration or upon the approval of 75% of the total voting interests.  {See Florida Statutes Section 718.111(7).}

MULTICONDOMINIUM EXPENSES

The common expenses of a multicondominium association do not include the common expenses directly attributable to the operation of any specific condominium or condominiums within the multicondominium. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act. 

  
           Florida Statutes Section 718.115(1)(c).  The common expenses of a multicondominium association may include categories of expenses related to the property or common elements within a specific condominium in the multicondominium if such property or common elements are areas in which all members of the multicondominium association have use rights or from which all members receive tangible economic benefits. Such common expenses of the association shall be identified in the declaration or bylaws as originally recorded or as amended under the procedures provided therein of each condominium within the multicondominium association. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.

NUISANCE 

If the occupant of a unit or the unit owner is creating a nuisance, the board of directors should be notified and should take steps to have the nuisance abated.  If the board refuses to take action, it should be notified by certified mail. After 30 days if the board fails to respond, then legal action may be taken.  If the problem is serious, the police should be notified immediately to document the problem.

PETS; Service Animals

If a service animal or a pet is a “necessary or reasonable accommodation” for a person’s disability, it may be allowed to remain with a unit owner under the Federal Fair Housing Act and Americans With Disabilities Act. The unit owner must have a letter from his or her physician that clearly states that the pet is absolutely necessary for that person’s well being, medical health and condition and that the presence of the pet is necessarily and directly related to that person’s medical disability, well being, and medical health and without the pet that person’s health would deteriorate and be seriously compromised. 

“Refusal to make reasonable accommodations in rules, policies or practices, when such accommodations may be necessary to afford such a person equal opportunity to use and enjoy a dwelling is prohibited.” (42 U.S.C. 3604).
           Florida Commission Human Relations www.fchr.state.fl.us 
           Federal Fair Housing (800) 440-8091 or (888) 341-7781 

RECALL OF DIRECTORS

Florida Statutes Section 718.112(2)(j) and Florida Administrative Code 61B-23.0026 – 61B-23.0028 explain the written recall procedure whereby a majority of voting interests may remove any member of the board of administration. There is a form online at Division of Condominiums at www.myflorida.com.  Or the Ombudsman will e-mail the information and form.             You may order a copy from the Division of Condominiums.  Call (800) 226-9101 or (850) 488-1122.  Or the Ombudsman will provide a Recall Ballot Form that a majority of unit owners each must sign.

The completed petition for recall must be served on the board by certified mail or process server ?(PI)? and the board must call a meeting within 5 days to certify the recall. If they do not certify the recall they must file a petition for arbitration with the Division of Condominiums within 5 more days. If no arbitration petition by the old board has been filed within those 5 days the new board holds an organizational meeting to elect officers. The organizational meeting does not have to be noticed. After the election of officers they should register their names and file the corporate form with the secretary of state at www.sunbiz.org. They should then decide who should sign the association’s checks, have the secretary verify it and the minutes of the meeting in writing, imprint it with the corporate seal, and then register with the bank for signature changes on the corporate bank accounts.

FOR MORE INFO AND FORMS PLEASE CLICK HERE!

RECEIVER

Appointment By Court

If the association fails to fill the vacancies on the board sufficient to constitute a quorum, any unit owner may apply to the circuit court for a receiver after a 30-day notice of intent.  {See Florida Statutes Section 718.1124.}

Florida Statutes Section 617.0809(1). Any vacancy occurring on the board of directors may be filled by the affirmative vote of the majority of the remaining directors, even though the remaining directors constitute less than a quorum, or by the sole remaining director, as the case may be, or, if the vacancy is not so filled or if no director remains, by the members or, on the application of any person, by the circuit court of the county where the registered office of the corporation is located.

  
RECORDS

    
           A unit owner has the right to see the official records of the condominium under Florida Statutes Section 718.111(12)(c) within 5 working days of written request certified mail return receipt.  (You must have a receipt of the written request). You should list the Florida Statutes number and section and describe the records as stated in the statute.  A records request format is available from the Condominium Ombudsman. Ombudsman@dbpr.state.fl.us.

The official records of the association are open to inspection and copying by any association member and shall be made available to a unit owner within 5 working days after receipt of a written request. If you are not provided with the records, you may contact the Ombudsman or file a complaint in court or with the DBPR, Division of Condominiums. Get a form on line at www.myflorida.com. You may receive remuneration and the records. 
http://www.state.fl.us/dbpr/lsc/condominiums/forms/complaint.pdf

RECREATION FACILITIES 

Right of owners to peaceably assemble

No entity may restrict any unit owner’s right to use the common elements and recreation facilities but may adopt reasonable rules and regulations.  {See Florida Statutes Section 718.123.}

RENTALS 

Any amendment restricting unit owners’ rights relating to the rental of units applies only to unit owners who consent to the amendment and unit owners who purchase their units after the effective date of that amendment.   {See Florida Statutes Section 718.110(13).}   For More Details Click Here!

REPAIR AFTER A CASUALTY

The following are your obligations after a casualty.
           Your Master Insurance Policy (hazard insurance) is to cover, up to its limits and less the deductible, all damage to the common elements and each unit due to a casualty.  (Each Declaration of Condominium and each Insurance Policy must be reviewed.) 

The premises shall be repaired or reconstructed to substantially the same condition existing immediately prior to the casualty and substantially in accordance with the original plans and specifications of the condominium and any subsequent modifications thereto. The extent of this damage should be determined within 60 days after the casualty.  

Florida Statutes Section 718.111(11) only governs your current insurance obligations.

If there are damages to the common elements, limited common elements, and individual units that exceed the policy limits of your Master Policy, your association must obtain the balance exactly as stated in your Declaration of Condominium under casualty loss. The balance may be obtained by use of reserves and by special assessment to unit owners. 

If the master policy insurer refuses to comply with its contract with the association, you should contact the Florida Department of Financial Services at (800) 342-2762 or at www.fldfs.com.  You may also qualify for assistance from FEMA and the IRS (800) 829-3676.                             

Pursuant to your governing documents and the law, your association is responsible to have the common elements, the limited common elements, and the individual units repaired or reconstructed without delay.
CLICK HERE FOR MORE INFO!

RESERVES

{See Florida Statutes Section 718.112(2)(f)3 and FAC 61B-22.005.}

Reserve funds shall remain in the reserve account and shall be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority at a duly called meeting of the association.

Florida Statutes Section 718.112(2)(f)2.  In addition to annual operating expenses, the budget shall include reserve accounts for capital expenditures and deferred maintenance.

The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance.

Florida Statutes Section 718.112(2)(f)4.  The only voting interests which are eligible to vote on questions that involve waiving or reducing the funding of reserves, or using existing reserve funds for purposes other than purposes for which the reserves were intended, are the voting interests of the units subject to assessment to fund the reserves in question.

Voting For Reserves

Limited proxies shall be used for votes taken to waive or reduce reserves. The ballot should be made to require a vote for reserves or against reserves and under the FOR RESERVES portion the amount in increments of percentages.  {See Florida Statutes Section 718.112(2)(b).}

AGAINST RESERVES ______
FOR RESERVES _____
100% ____
75% ____
50% ____
25% ____

Commingling  

All funds collected by an association shall be maintained separately in the association's name.  For investment purposes only, reserve funds may be commingled with operating funds of the association.  Commingled operating and reserve funds shall be accounted for separately, and a commingled account shall not, at any time, be less than the amount identified as reserve funds.   

Florida Statutes Section 718.111(14).  A manager or business entity required to be licensed or registered under s. 468.432, or an agent, employee, officer, or director of an association, shall not commingle any association funds with his or her funds or with the funds of any other condominium association or the funds of a community association as defined in s. 468.431. 

RESORT CONDOMINIUM 

Florida Statutes Section 509.242.  Public lodging establishments; classifications.-- 
(c) Resort condominium.--A resort condominium is any unit or group of units in a condominium, cooperative, or timeshare plan which is rented more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented for periods of less than 30 days or 1 calendar month, whichever is less. 

RIGHT OF ACCESS TO UNITS 

The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association, pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units. If an individual does not wish to provide a key, he must notify the association who to contact to obtain a key or access in case of an emergency.  {See Florida Statutes Section 718.111(5).}

The association must give sufficient and adequate notice of entry and exert extreme caution because of Florida ’s “Stand Your Ground” legislation.

RIGHT OF REFUSAL 

Florida courts have held that an Association may refuse to permit a sale or lease as long as it does not violate an individual’s constitutional rights.  The association may not reject a transfer or lease because of the individual’s economic status, such as credit, assets or income.  The consideration for the basis of approval or disapproval should be reasonably related to general compatibility of the prospective purchaser with the members of the community and the health, happiness, peace of mind, and enjoyment of life of the various owners.

RULES 

    
           Issues governing promulgation and enforcement of rules should be covered in the Declaration or Bylaws.  Either the Board or the Members (Association) may make reasonable rules.  Members may enact rules under Florida Statutes Section 718.112(2)(b) which states that  “Unless otherwise provided in this chapter or in the declaration, articles of incorporation, or bylaws, decisions shall be made by owners of a majority of the voting interests represented at a meeting at which a quorum is present.”  The rules may not be contrary to the Declaration or the Bylaws and they must be reasonable.

STATUTES, ADMINISTRATIVE RULES AND EDUCATIONAL MATERIALS 

Condominiums are covered in Florida Statutes Chapter 718 and Florida Administrative Code 61B-15-24, 45 and 50.

You may order a copy from the Division of Condominiums by calling (800) 226-9101 or (850) 488-1122. http://www.myflorida.com/dbpr/lsc/condominiums/publications_index.shtml http://www.myflorida.com/dbpr/lsc/condominiums/index.shtml.

SALE OF COMMON PROPERTY 

The association may acquire, convey, lease or mortgage association real property, but only in the manner provided in the declaration.  If not specified in the declaration, then approval of 75% of the total voting interests shall be required.  {See Florida Statutes Section 718.111(7).}

TAXES & FEES

Every condominium association must file the annual fee of $4.00 per unit with the Division of Condominiums by January 1.

Every condominium association must file an annual income tax return with the Internal Revenue Service by March 15.

Every condominium association must file an annual Uniform Business Report (with the filing fee) with the Division of Corporations by July 1.

USE 

A unit owner is entitled to use the common elements in accordance with the purposes for which they were intended, but no use may hinder or encroach upon the lawful rights of other unit owners.  {See Florida Statutes Section. 718.106(3).}

VACANCIES ON THE BOARD (Replacement)

A vacancy on the board created by a resigning director may be filled according to the Bylaws or by appointment by the affirmative vote of the majority of the remaining directors. {See Florida Statutes Section 718.112(d)8.}  

  
           Florida Statutes Section 617.0809(1).  Any vacancy occurring on the board of directors may be filled by the affirmative vote of the majority of the remaining directors, even though the remaining directors constitute less than a quorum, or by the sole remaining director, as the case may be, or, if the vacancy is not so filled or if no director remains, by the members or, on the application of any person, by the circuit court of the county where the registered office of the corporation is located.

VOTING CERTIFICATE

"Voting certificate" means a document which designates one of the record title owners, or the corporate, partnership, or entity representative, who is authorized to vote on behalf of a condominium unit that is owned by more than one owner or by any entity.   {See Florida Statutes Section 718.103(29).} 

FAC 61B-23.002(6).  If the declaration, articles of incorporation or association bylaws require or authorize the use of voting certificates, the voter named on such certificate is the only person authorized to appoint a proxy even though the unit is owned by more than one person or entity or is owned by an entity which is not a natural person. 

This resource was prepared by Florida ’s First Condominium Ombudsman, Dr. Virgil Rizzo.  Legal opinions expressed herein are not necessarily the opinions of the Department of Business and Professional Regulation.

~~~~~September 2007~~~~~