Q: I have a question about financial records from my condo complex. I have been requesting financial records from the homeowners association (HOA) president since February and still have not seen or received any of the paperwork. Because of my requests, I believe I’m experiencing some sort of retaliation and am beginning to feel uncomfortable in my own home. Any assistance you can offer would be greatly appreciated. Thank you. K.Z., Naples
A: The Condominium Act (Chapter 718, Florida Statutes) and the HOA Act (Chapter 720, Florida Statutes) both provide that official records must be made available for inspection and copying at the location where the records are kept within 10 business days of receipt of a written request. The law does not require the association to copy the records and send them to the requester. The association simply has to make the records available and then the requester must go to the site where the records are kept and can make copies for a reasonable per page charge. Further, the association may have a records request procedure or rule that you must follow as well. So, you should make sure you are following the proper procedure when requesting to inspect and copy the records. Finally, if the association fails to make the records available to you within 10 business days after receipt of a proper request there arises a rebuttable presumption that the association intentionally denied you access to the records. In such cases, you would be entitled to damages of $50.00 per day for each day you were denied access up to a maximum of $500.00.
Q: We understand that the Florida Statute regarding background checks indicates that the first year, a condo association can charge a nominal fee. We further understand that the statute indicates that there should be no fee if the renewal for the next year is within three months. Our condo association charges a nominal fee for the first year, but also charges the same fee for the other years even though the renewal happens within three months. Can the condo association make their own rules regardless of the Florida Statute? C.G., Bonita Springs
A: The law you are referring to is Section 718.112(2)(i), Florida Statutes which provides that “no charge shall be made by the association or anybody thereof in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100.00 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. However, if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made.” So, the first thing you should confirm is that the governing documents actually require the association to approve a lease and can charge the transfer fee. If the documents do not provide for both, no transfer fee can be charged at all. You might be surprised how many associations charge transfer fees when the governing documents do not authorize it. Assuming the governing documents authorize such fees, you will note that the law provides that “if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made.” Therefore, no three-month time frame; if the lease ends and the unit is vacated and then the same tenant seeks to lease the unit again a new transfer fee can be charged. However, if the lease ends and the tenant does not vacate the unit but seeks to renew the lease then no new transfer fee can be charged.
Q: Our condominium board of directors has an agenda item to vote to go back to three-year terms for directors. We now have one-year terms as we were told by legal counsel that the Florida Statute allows one-year terms and a proxy vote would be required for a two-year staggered term. Has this changed in the recent past? Our bylaws have three-year terms from before the change. We had a proxy vote in the past and it failed to approve staggered terms. Your opinion, please. K.S., Naples
A: The Condominium Act has been changed several times in regard to the length of terms for directors. Formerly the Statute provided that you could have one-year terms or two-year terms if the two-year terms were staggered but in no event could you have a term of longer than two years. Recently the Statute eliminated the two-year stagger requirement and eliminated the prohibition of terms greater than two years. So, under the present law you can have director terms of any length that is provided for in the bylaws. In your case, if your bylaws formerly allowed three-year terms, but they were legally eliminated due to the implementation of the two-year statutory limit, since that limitation no longer exists, your bylaws providing for three-year terms are once again valid. Note that the HOA statute does not limit the length of director terms either.
Q: When a motion is made at a board meeting and discussion is invited before a second, isn’t it supposed to be discussed among the board, not residents? M.P., Fort Myers
A: First of all, according to Robert’s Rules of Order the proper protocol is motion, second, discussion and then a vote. So, technically, if the motion is not seconded, there is no discussion by the board. Boards often engage in a discussion before a motion is made and before a second and that is allowed if the four elements (motion, second, discussion and vote) are properly noted in the minutes of the meeting. Additionally, the Condominium Act, the Cooperative Act and the HOA Act all provide that owners attending a board meeting have a right to speak on all agenda items. So, sometime before the board votes on the agenda item the chairperson of the meeting should ask for and allow owner comments on the agenda item.
Q: My condominium association says that it keeps its banking records at its bank in Miami and if I want copies of the records, I have to go to Miami to get them. My condominium is in Naples. Do I have to go to Miami to get the records? S.F., Bonita Springs
A: No, the Condominium Act provides that the records of the association shall be made available to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located. So, the association must make the banking records available to you in accordance with the law.
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Published in the Naples Daily News on December 22, 2019
Richard D. DeBoest, II, Esq. is co-founder and shareholder of the Law firm Goede, DeBoest & Cross, PLLC. T o ask questions about your issues for future columns, send your inquiry to: info@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, 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.
