Q. Our homeowners association’s declaration does not authorize our board to delegate architectural review decisions to a committee. Our board does have rule-making authority, but I don’t see where we are authorized to have a committee stand in for the board. In April, the board formed an architectural review committee, but it is advisory only. Do we have any way of giving more authority to this committee? – E.G.
A. Your declaration appears to be deficient in this area. Fortunately, the Florida statute governing nonprofit corporations provides some guidance. Chapter 617 of the Florida statutes also governs HOAs when Chapter 720 does not provide guidance. Provided your articles or bylaws do not restrict committees, Chapter 617 allows your board with a majority vote to appoint a committee with decision-making authority over architectural review and other matters. The only matters that a committee cannot handle are 1) filling vacancies on the board; 2) amendments to the bylaws; and 3) other decisions that must be made by the members. Committee meetings should be open to members. Each committee must have at least two members and the committee members serve at the pleasure of the board.
Q. I have a concern about restrictions in our original condo documents that were made decades ago and are outdated. For instance, my condo documents prohibit personal pickup trucks, although commercial trucks are allowed during normal business hours. The best-selling vehicle over the last decade is a pickup truck. The documents are silent on SUVs, so they are allowed, but SUVs are bigger than pickups in many cases. Personal pickup trucks do not interfere with the quiet enjoyment of the condominium. How does an owner obtain approval to keep, at any time, a personal pickup truck on a condominium property? A document change approved by the members is unlikely. – B.B.
A. This is likely going to be an uphill battle for you. The original restrictions in your condominium documents are heavily favored by Florida courts because each owner purchases with “knowledge” of their existence, regardless of whether you actually read the restrictions. The key to obtaining approval may be found by inspecting the association’s official records. In order to successfully enforce the pickup restriction against you, the association must have a solid track record of consistently and timely enforcing the restrictive covenants. If you can find instances where others were permitted to have pickup trucks, either by selective enforcement or inaction by the board, you could argue that you are also entitled to have a pickup truck. You could also lobby your fellow members to approve a similar restriction against SUVs and other large “hybrid” type trucks that are not technically pickup trucks. These types of vehicles were probably not around when your condo documents were drafted and the developer’s intent was probably to prohibit trucks in general or vehicles of a certain size and not strictly pickup trucks.
Q. I know that the law changed a couple years ago to allow my association to collect or garnish rent from tenants who occupy delinquent units. I have heard that associations have used this new law with mixed results. What has been your experience and do you have any suggestions? – K.W.
A. You are correct. Both condo and homeowners associations now have the ability to require renters to pay the association rather than the delinquent unit owner. We have had positive results using this new legal tool. Associations that have had mixed or poor results are probably trying to collect rent without legal counsel or stopping the process after sending only a single demand. If the tenant does not respond to the first demand, we promptly send a three-day eviction notice and also have that notice posted on the door. The tenant usually responds to that notice and either pays or vacates. If they do not pay or vacate, the association can evict the tenant and add the legal costs to the unit owner’s delinquent account. Once we explain to the tenant that the delinquent unit owner cannot evict the tenant for paying rents to the association, the tenant usually falls into line. The collection of monthly rents can quickly help your association recover unpaid assessments and other charges.
Q. I am a community association manager managing a new construction condo building. We recently had turnover. I want the board to obtain an engineering report detailing any construction defects but before proceeding they wanted an understanding of the warranty periods from turnover. Do you have a statute breakdown or some brief summary of items and warranty periods? Your assistance is appreciated. – F.L.
A. By statute, the developer grants to each unit owner a three-year warranty of “fitness and merchantability” on the unit itself and a one-year warranty on the personal property sold with the unit (e.g. appliances). A warranty of fitness and merchantability is a promise from the developer that the unit is fit for use as a residential living unit and that the buyer is generally getting what he expects in the purchase. The three-year warranty on the unit starts when the condo building is complete. The one-year warranty on the personal items starts when the buyer closes on the purchase of the unit. The association, also, gets warranties on the roof, structural components of the buildings and other common improvements. The association’s warranty is three years from completion of the building or one year from the date of turnover, whichever is last, but never longer than five years. The contractor and subcontractors also provide similar warranties to the developer and the developer is required to maintain a list of all contractors, subcontractors and suppliers and provide that list to the association at turnover. If the developer breaches the above warranties with respect to the common elements, the association may recover damages in an amount necessary to correct the defects. There is a special legal procedure that the association needs to follow in construction defect claims, so it will be necessary to consult with legal counsel before pursuing any claims.