Condo & HOA Law, Naples Daily News

Naples Daily News | May 24, 2020 | Laws Prevent Owners from viewing correspondence

Q: Are condo owners entitled to see correspondence between the board President and the association’s attorney? Are owners the client or is the board the client especially if association monies are used to pay the legal fees? Our board is stalling the annual meeting and election and refuses to hold either via teleconference where owners can see the ballots opened and counted. They say they’re acting on the advice of their attorney but have not shown any communication to that effect. Are owners legally entitled to see that communication?

J.S, Naples

A:   As to your first question Section 718.111(12)(c)3a, Florida Statutes provides that Owner are prohibited from seeing correspondence “[a]ny record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including a record prepared by an association attorney or prepared at the attorney’s express direction, which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of such litigation or proceedings until the conclusion of the litigation or proceedings.” So, the answer is no you are not entitled to see attorney correspondence to the Board that is protected by the attorney client privilege until “the conclusion of the litigation proceedings or anticipated litigation. As to your second question the individual Owners are not the clients of the Association’s attorney. The Association (corporation) is the attorney’s client. The emergency powers granted to the Association and applicable during the Covid-19 pandemic authorize the Board to cancel or delay Association meetings including the annual meeting. So, while your Board could hold a telephonic annual meeting with visual access the Board is not obligated to do so.

Q:   Our Condo Board is undertaking a large project to repair elements on the exterior of our buildings. In the process the lanai floors and screen enclosures of the units will be removed and/or damaged. It is the Boards position that the cost to replace the lanai flooring and screen enclosures will be the responsibility of the individual owners. As owners we feel because the work is necessitated by the exterior work being done to the buildings the cost to restore the floors and enclosures should be included in the cost of the repair project and be paid by the Association. What does Florida statute say? Our condo docs do not address this situation. Only that owners are responsible for flooring and enclosure cost for initial installation and routine maintenance and repairs.

J.B., Naples

A:   The answer depends on your governing documents and who originally installed the lanai flooring and screen enclosures. Generally, however, if the Owner or the current Owner’s predecessor in title to the Unit installed these items then the Association is not responsible to pay for the cost of the removal or replacement of the items. The law provides that when and Owner makes an improvement to their Unit or Limited Common Element that was not originally installed by the Developer the Unit owner does so at the risk that someday the improvements will need to be removed so the Association can perform necessary maintenance or repairs. Conversely, if the Developer installed the enclosures and flooring the Association would be responsible to pay for the removal and replacement of the items.

Q: I own a Unit that I rent out. If the tenants do not pay the rent how do I evict them?

D.G., Bonita Springs

A:   You must file an action for eviction pursuant to the Landlord Tenant Act which is found in Chapter 83 Florida Statutes. You will have to file a 3-day notice of demand for rent first and then if they do not pay you will need to file an eviction lawsuit. Note that due to Covid-19 pandemic the Governor has put a moratorium on eviction actions for unpaid rent. You should consult a Florida licensed attorney regarding your particular circumstances.

Q:  There is a situation on the Board of Directors of our Condo Association. One member of our Board of Directors has sold his condo in our community and, therefore, is no longer an owner. Is he eligible to continue to be a Board member as a non-owner? Also, as a non-owner, is he eligible to attend and participate in an Owners Only meeting?

C.R., Marco Island

A:   The Condominium Act (Chapter 718 Florida Statutes), the HOA Act (Chapter 720 Florida Statutes) and the Cooperative Act (Chapter 719 Florida Statutes) do not require that to be eligible to serve on the Board of Directors the person must be an Owner. However, most, but not all, governing documents do impose this requirement. So, if your governing document do not require that Directors be Owners the person is eligible assuming he or she meets the other Statutory requirements. i.e. Not a convicted felon, at least 18 years old, not indebted to the Association and not under inditement by the Division of Condominiums. If your documents do impose ownership as requirement to serve on the Board then the person is not eligible. Generally, a non-owner is not entitled to attend Board or membership meetings without the permission of the Board. However, if the person is a Director and ownership is not a requirement to be a Director the person in their capacity as a Director would be entitled to attend such meetings.

Q:  Our Master Association governing board for our multi-faceted community rebuilt our community pool with a sunledge. It is permissible to build a sunledge in a community pool, but no furniture or tethered flotation may be installed which creates a code violation due to health issues. Therefore, at great cost, this work was installed but cannot be used as intended. Placing furniture on a sunledge is a great way to read a book with a mudslide to sip but because we are a community, we cannot due to code restrictions. How can this be unraveled?

L.S., Estero

A:   I am not familiar with the particular Code you are referencing but you have used the word “installed” with regard to chairs on the sunledge. If that is the actual term used in the Code, it would seem to mean “affixed” or “attached” as opposed to placing a chair on the sunledge that is not permanently affixed to it. So, I recommend you review the Code to see if this is the case. However, if the Code does prohibit temporary placement of chairs on the sunledge I do not think you can do much about it without risking a code violation if someone were to report it.

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Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, DeBoest & Cross, PLLC.  Visit, or to ask questions about your issues for future columns, kindly send your inquiry to:  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, PLLC, 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.