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Q: Our condominium association adopted and collected a special assessment for hurricane Irma damage. Now we have finally settled with the insurance company and have a surplus of funds. The board is considering refunding the surplus funds to the owners who paid the special assessment but some of those owners have sold their unit and moved. How can this be done? B.H., Naples A: The surplus must by law be returned to the current owner of record not a prior owner even if the prior owner paid the special assessment. The Condominium Act provides in Section 718.106(2)(a) that the surplus...

Q: We just had an election and discovered that the prior president signed a long-term contract with a vendor that locks us into the agreement for almost five years. The contract appears almost impossible to terminate. Is this legal and can we terminate now that the new board was elected?C.H., Naples A: We would need to know more about the specific facts to fully answer the questions, but the answer is most likely that the agreement is legally enforceable, and the election of the new board would not permit the existing directors to terminate the agreement. Many of our clients...

Q: In response to COVID-19, our community wants to authorize the use of electronic voting to facilitate participation. Can the association use an online polling service, or do we need to engage a third party to implement the electronic voting system? H.D., Naples A: As a result of social distancing requirements and risks associated with in-person gatherings, many communities are implementing an electronic voting system to facilitate participation. The board is not required to do this, but it is an option. Often, communities will engage an internet polling service which can be very helpful to gauge the interest of the...

Q: Is it improper or illegal to name a delinquent owner and the amount owed in the minutes of a meeting where the board votes to suspend an owner’s voting rights? A: No, the minutes should reflect enough information to identify the property or unit and owner in question. Such as a motion stating, “I move that the voting rights of the owner of Lot # be suspended due to the owner being delinquent in the payment of assessments owed to the association for more than 90 days.” So, while it is not illegal to name the person, we generally...

Q: Our community has a small group of owners that try to bully the board at meetings and take control of the meeting. As a result, we end up emailing each other a lot leading up to meetings to strategize and minimize debate at the meeting itself. Any other suggestions? B.D., Naples A: There are a few points here worth discussing. First, it is important to remember that you cannot vote by email. Any action taken via email is not corporate action because Florida Statutes Section 718.112 provides that “members of the board of administration may use e-mail as a...

Q: Our condominium has been reserving every year to repaint the buildings every seven years. We are now approaching seven years and it turns out the paint reserve fund was never on track to be fully funded and we are going to be short. Can we use money set aside for other projects or do we have other options? B.F., Bonita Springs A: This is a common situation. In Florida, the general rule applicable to condominiums is that reserves must be fully funded unless the membership votes to underfund or waive reserve funding altogether. This means that your board should...

Q: Our association has been holding its board meetings electronically via video conference. They have now announced that the upcoming annual members meeting will be held the same way with no physical attendance allowed. Is this legal? D.C., Naples A: Yes, it is legal. First, Florida is still under a state of emergency due to COVID-19 and as such the board may exercise its statutory emergency powers and prohibit physical attendance at meetings. Further, Section 617.0721(3), Florida Statutes provides: “(3) If authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may...

Q: We have a resident that appears to be giving tennis lessons on the tennis courts on the weekends. He is an owner and has every right to use the court, but he is also posting advertisements on the bulletin boards and obviously profiting by the existence of tennis courts which we all pay for. Should our board stop this activity? T.D., Bonita Springs A: There are a lot of different ways to answer this question because every community has a different perspective on whether this should be permitted, and of course the legal answer also involves a review of...

Q: Our condominium insurance premium increased this year by a significant amount. Rather than increase assessments by the same amount, we want to reduce the reserve assessment to minimize the impact on the premium increase. I read somewhere that the board has discretion over the budget but was also told that there is no discretion with reserves. How do we accomplish this? R.B., Naples A: This has actually been a common question over the last few months and an important issue for many, particularly during a time when many owners are asking for financial relief in any form due to...

Q: Can Elected HOA Board Members be Removed if They do not Participate?