Condo & HOA Law, Naples Daily News

Naples Daily News Q&A | May 22, 2022 | Engaging new Landscapers for your Community

GD&C Law Webinar Presenter Attorney Kyla Thomson, Esq. | Florida Attorneys Goede, DeBoest & Cross

By Attorney S. Kyla Thomson


Q. I live in a condominium and was just told by management that it will need to access a common drain line in my bathroom wall in order to fix a leak.  While I have no problems with providing the association with access to the drain line, I need to know if the association is going to put back the drywall that it is cutting out of my wall and also if they are going to paint the drywall the same color as the rest of the wall.  – R.R., Naples

A.  As you already know, the association is responsible for repairs to the common drain line.  Your question centers around the party responsible for placing your unit back to the way it was prior to the association “damaging” it because of the association’s obligation to repair.  This is the concept of “incidental damage”, meaning that one party incurs expenses or damages because of another party’s fulfillment of its obligations.  In order to answer this question, I recommend that you review your Declaration of Condominium.  The incidental damage provision is most likely in the Maintenance section, under association maintenance. More often than not, the provision regarding incidental damage will state that the association is required to repair any incidental damage incurred as a result of the association’s maintenance, repair, and replacement responsibilities over its own common elements.  This means that the association will not only be required to replace the drywall that it will cut out to access the common drain line but it will also be responsible to paint the new drywall and other areas where the paint may be damaged.  I recommend ensuring that management has the name of the paint color on your walls so that the association can obtain the paint color and can paint quickly after it fulfills its repair responsibility over the common drain line.

Q.  Recently, my condominium board of directors held a board meeting where it voted to engage a new landscaper for our community.  This was a controversial vote because there were some board members who were against hiring this landscaper and others that abstained from voting.  Ultimately, a majority of the board did vote to engage the landscaper.  How should this vote be reflected in the minutes? – J.S., Bonita Springs

A.  Section 718.111(1)(b) of the Florida Statutes provides guidance on how the board meeting votes should be reflected in the meeting minutes.  The statute states that a board member who is present at a board meeting shall be presumed to have agreed to the action taken unless he or she votes against the action or abstains.  If a director abstains, then it shall be presumed that the director has taken no position with regard to the action.  Any vote, either for or against an action, or an abstention shall be recorded in the minutes.

Q. My homeowner’s association just voted to change the paint color of our clubhouse from a Mediterranean yellow and cream theme to more grays and whites.  I know that this would be considered a material alteration that would require owner approval.  However, the board stated that, after consultation with its legal counsel, no material alteration vote is required because the painting expense is less than the amount required for a vote.  I looked at Chapter 720 but could find any reference to material alteration or an amount.  Can you help?  – A.V., Naples

A.  You will not find a reference to material alterations or amounts in connection with material alterations in Chapter 720, F.S.  The material alteration provision, including any amount which could trigger an owner vote, will be found in your Declaration of Covenants.  In the Declaration, you will find a material alteration provision that will require the approval of a minimum number of owners before the association can move forward with a material alteration.  That being said, it looks like this provision also contains a threshold amount where the board may avoid a material alteration vote if it spends less than the threshold amount.  I suspect that the painting expense for the building is less than the threshold amount in the material alteration provision of the Declaration.  If this is so, then the board may avoid a vote even though the proposed action is still a material alteration.  I recommend that you speak to your own legal counsel regarding this matter as it will require a review of your Declaration’s material alteration provision and the amount that the association will incur in painting its clubhouse.