Q: My neighbor built an herb garden in the back of her condominium unit. The Board is telling her that she can’t have the herb garden, but I personally have no objection. Can’t she keep it?
-P.A., Naples
A: Probably not. The first part of the analysis is to determine whether the herb garden is actually located within the technical boundaries of the unit. This would require an analysis of the Declaration of Condominium. If the herb garden is outside of the unit boundary, and it sounds like it is, then the garden is most likely resting on common element ground. All owners have the right to use common elements and if one owner colonizes the common elements for their own personal use to the exclusion of other unit owners, that is generally not permissible.
There can be exceptions to this if authorized by the Declaration of Condominium as a limited common element or in certain situations where the Association is required to grant a reasonable accommodation under fair housing laws, but the Association should take steps to ensure that the common elements are not essentially fenced in by one owner to the exclusion of others.
If the neighbor refuses, the Association would have the right to pursue injunctive relief to force the owner to remove the herb garden or the governing condominium documents may permit the Association to remove the herb garden and charge the costs back to the offending owner.
Q: Our homeowners association is preparing to levy a special assessment due to Hurricane Irma. We all know the assessment is coming eventually, but the Board is waiting to levy the assessment for various reasons, including contractor availability and construction costs. I have a buyer offering to purchase my home and the buyer doesn’t know about the possible assessment. Who is responsible to pay it?
-C.R., Bonita Springs
A: This is a good question and the answer will depend on the language of your sales contract. From the Association’s perspective, the owner of the lot is responsible to pay the assessment and the Association will pursue the owner of the lot (whether it is you or the buyer) if the assessment is not timely paid.
Different real estate sales contracts include different provisions, but a standard provision states that the seller is responsible for special assessments before the signing of the contract, and the buyer is responsible for special assessments after the signing of the contract. The legal debate generally involves whether this includes special assessments which are known, but not yet levied by the Board, when the contract is signed. Or, conversely, assessments which are approved by the Board but not yet due and payable when the contract is signed. Each contract should have specific language to provide the answer.
After the contract is signed, the title company will request the Association provide an estoppel which, among other things, states whether there are any past due assessments, and whether there are any special assessments coming due. This will inform the buyer if you do not do so whether an assessment has been levied by the Board.
Ultimately, I should note that this is negotiable. If the buyer thinks there will be an assessment, the parties could agree that you as the seller will provide a credit at the closing table to the buyer, or you could agree to hold closing proceeds in escrow to determine the amount and timing of the assessment. Or you could include a provision that the buyer is completely responsible no matter the amount or the timing.
The recommendation here is to work with a licensed Florida attorney to review any notices and minutes of Board meetings discussing and/or levying a special assessment, and then to address this issue in the sales contract to avoid a dispute.
Q: I have been experiencing hearing loss and can’t hear the Board discussions at Board meetings. I have asked that the Board purchase microphones and speakers so that I can understand the discussion. Can I force the Board to do this?
-L.M., Marco Island
A: The statute does not specifically address this issue. The statute provides that the members are allowed to speak to the Board on agenda items and that most Board meetings are open to membership attendance, but there is no requirement to record Board meetings or to provide amplification.
If an owner requests the Board grant an accommodation due to a disability, the Board would likely need to provide that reasonable accommodation if necessary for participation and enjoyment of the home, but that is different from forcing the Board to use common funds to purchase equipment. In other words, you may be able to compel the Board to utilize equipment that you provide so that you can hear the meetings, but I am not aware of a law that would require the Board to purchase this equipment for your benefit.
The law does permit you to record meetings, so you could record the meeting and then play back through an amplification system after the meeting, or you could purchase a microphone so that you can listen through headphones during a meeting.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.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, DeBoest & Cross, 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.