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Can the board use funds to insure a donated golf cart?

Q. We live in a condominium development in Southwest Florida. Recently, our board of directors voted to allow one of the unit owners to donate the use of his unlicensed street-worthy golf cart to our condominium association, and to obtain liability insurance for this privately owned golf cart. Is it proper to use condominium funds to insure the privately owned golf cart? If so, who would be legally responsible if the golf cart were involved in a collision on our condo association property? Similarly, who would be legally responsible if this golf cart were to leave condominium property? Finally, who is responsible for maintenance and care of this golf cart? — S.S.

A. Assuming the governing documents and the insurance policy do not prohibit it, the board of directors is free to use association funds to insure the golf cart provided the cart is used for proper association purposes. We would certainly recommend this insurance coverage because the association has a duty to guard itself and others against the financial repercussions of potential accidents. This coverage is recommended regardless of whether the cart is donated or purchased by the association. The difference with the donated cart is that it probably lacks any warranty and may have some worn parts. At the minimum, you should ensure that the motor, batteries and tires are in reasonable condition.

In the unfortunate event of an accident on association property, liability would be determined based on who was operating the cart and for what purpose. For example, if an association staff member, or his designee, was in control of the vehicle and he was driving the cart within the scope of his employment, then the association would most likely be responsible for any injuries or damage. The answer is the same if the accident occurs off association property. As to your last question, the responsibility for maintenance and care of the golf cart will fall on the association once the association accepts the donation and title to the cart. If the association is serious about acquiring equipment such as golf carts, we would recommend that the association consider acquiring that equipment from a reputable vendor rather than through donations. We are aware of one case where an association accepted a used treadmill as a donation and an injury was suffered because the treadmill was not in good condition.

Q. The board of directors in our condominium has voted to repair lanai frames and screens that have been due for repairs for many years. The board plans to use general funds to pay for this. Unfortunately, many of us have already made these repairs at significant cost and we will be bypassed in this replacement of lanai frames and screens. In the past, we were advised verbally that these are within the walls of condos and therefore the owner’s responsibility. I have heard in passing that the “vertical plane” rule is the determining factor here. The frames and screens are a bit over one inch inside this vertical plane. Can the board do this? What is this vertical plane rule? Are we due a refund for the proper maintenance of our condo lanais? – S.V.

A. The answer to each of your questions are likely contained in your association’s declaration of condominium, which governs the maintenance responsibilities of the association and the unit owners. Without that document it is difficult for me to give definitive answers to your questions. Nonetheless, here are a few guiding principles: First, the declaration of condominium determines the outer boundaries of your unit. Depending on the language in your condominium documents, the lanai and screens could be entirely contained within your unit or they could be a common element. Further, the location of the lanai and screens may not be determinative as to maintenance responsibility. Often, the association assumes responsibility for the cost of maintaining common elements that exclusively serve a single unit (known as “limited” common elements) and even portions inside the units themselves. Nonetheless, the fact that the association is using general or common funds to pay for this project indicates that the responsibility for lanais and screens probably falls on the association and is considered a common expense pursuant to your documents. Whether you are due for a refund for your repairs is a difficult question. If the lanai frames and screens are in fact the responsibility of the association pursuant to your documents, the association may have no liability to you if the repairs were not necessary when you made them. Further, depending on when you made the repairs, it may be too late to pursue any sort of claim. Perhaps you could negotiate a credit on your maintenance fees. These difficult questions can be answered by an experienced condominium attorney.

Q. Is it possible for a homeowner’s association to sell common areas without members’ consent? — D.A.

A. The answer for a homeowner’s association, in particular, is “Yes,” subject to the governing documents of the association. Specifically, section 617.0302(11) of the Florida Statutes allows for a non-profit corporation to “sell, convey, mortgage, pledge, lease, exchange, transfer, or otherwise dispose of all or any part of its property and assets.” A homeowner’s association is a non-profit corporation in most cases, and as such, is governed by the above. However, the HOA documents might have restrictions on the association’s right to take such significant steps without member approval. Therefore, a complete answer to your question would require a review of your community documents. On the other hand, the treatment is different for a condominium, and the answer to the same question would generally be “No.” In that case, the unit owners have an equal ownership interest in the common elements and the sale, without proper approval of the unit owners, would be an illegal deprivation of the owners’ property interest in the condominium common areas.

Q. Our master association operates a golf course and clubhouse in a bundled golf community. Recently, the quality of the food and service in the clubhouse has caused discontent among the members. For several years, the master board has appointed a restaurant committee that is made up of representatives from various neighborhoods in the community. When I told the committee chairman that I wanted to serve on the committee, I was told that the committee members were selected by the board president and that no changes were anticipated at this time. I regularly patronize and dine at the clubhouse restaurant and feel that I could help improve the quality of the service. Is it legal for the president of the master board to control the committee this way? What can I do to voice my concern? — T.C.

A. Committees are very useful in a larger condominium or HOA, but the association must be careful to follow legal requirements needed to establish and operate committees. There are generally two types of committees, those that are merely advisory (to the board) and those that actually take official action. Committees that are merely advisory may be appointed by and report to the president of the board. These committees do the fact finding on certain issues and will often make a report at meetings of the board, but do not take any official association action. Examples of these committees include landscape committees, social committees and finance committees.

Committees that make decisions for the board are held to a higher standard. These committees should be appointed by a majority of the entire board. Examples of these committees include the architectural review committee and committees that make decisions on lease and sales applications. If your restaurant committee is making actual decisions regarding the operation of the restaurant, that could be subject to legal challenge if the president is essentially running the committee on his own.

Please also remember that committees making final decisions on financial and architectural review matters are subject to the same meeting requirements that apply to the board. Notice of those committee meetings should be properly posted and the meetings should be open to the members. You should use that opportunity to attend a committee meeting and voice your concern.