Living near the beach is a dream of many Americans. Many have achieved this goal by owning a condominium in South Florida, instead of a single-family residence, where windows offer oceanfront views and doorways offer a chance to walk to a sandy beach.
In fact, because so many of us chose a condominium as a preferred type of home ownership in Florida our state legislature has had to address countless legal issues related to this type of real estate ownership. Today, unlike some states, Florida has developed a substantive body of law written by lawmakers and the courts dealing specifically with condos and condominium disputes. This includes the Florida Condominium Act (Chapter 718 of the Florida Statutes)[1] as well as numerous court opinions and agency rulings by the Florida Division of Condominiums, Timeshares and Mobile Homes. [2]
Living the condo life is different from living in a suburban community, a rural setting, or even other kinds of communal living options. Condo owners must share not only ownership with their fellow condo owners in their particular condominium, but these unit owners must deal with those placed in charge of overseeing the upkeep and welfare of the condominium as a whole: i.e., the condominium association’s board of directors, the infamous “Condo Board.”
Each condo unit owner is a member of the Condominium Association. [3] The Condominium Association acts through its board of directors, the Condo Board. The condominium can be self-managed, or the Condo Association can hire a third-party manager to manage things. If there are over 10 units or an annual budget exceeding $100,000, then Florida law requires that this manager be licensed by the State of Florida as a “Community Association Manager”. [4]
The power of the Condo Board is vast. For instance, the Condo Board has the right to enter the individual condo units of every condo on the property, a threat to privacy that someone living in a single-family home will not face. Under Florida Statute 718.111(5) [5], Florida condo unit owners must provide their condominium association with access to their condo unit in case entry is needed in an emergency (say, a burst pipe). The unit owners must trust the Condo Board and the management they have put in place over the condominium community not to take advantage of that ability to access individual homes.
Imagine how the power granted by this statute [6] might be misused by a nosy or unscrupulous condo manager:
“The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.”
This is just one example of how different life can be for a condo unit owner and another homeowner who lives within walking distance but in a single-family home. Each unit owner must surrender some power to the condominium association in order to enjoy the benefits of a condo lifestyle.
In addition to access, the condominium association has other powers as well: its Board of Directors is in charge of the overall condominium finances (collecting and recording condo fees and assessments; paying condo expenses; etc.); as well as the collection of past due fees and assessments; foreclosing on condos; maintaining the property; and making sure that all the unit owners are abiding by the condominium’s rules and regulations (along with its Articles of Incorporation, ByLaws, etc.). [7]
Understandably, friction occurs in the dealings between unit owners and their Condo Boards quite often. These controversies can escalate to a point where one or the other combatants decide to hire a lawyer. At this juncture, it’s hoped that negotiations can resolve the dispute and settle things to an amicable conclusion.
However, experienced Florida condo lawyers have all sorts of war stories about condo cases that as a general rule fall into a few categories, such as :
The Condominium Association’s ability to take any action whatsoever is controlled by a specific set of documents along with current Florida law.[8] Those documents include the legal documents that created the condominium from a slab of real estate (the Declaration) as well as the documents that form and define the Association, establishing it as the governing entity over that piece of real estate (the Articles of Incorporation and ByLaws).
Legal limitations on what the association can do will be defined in these documents as well as how they apply under the law. These can include legal covenants found in the deeds, as well as environmental regulations from the federal level, ordinances at the local level, and the Florida condo laws.
The Condominium Association will take action through a group of people elected to serve in that capacity. These are the individuals who make up the Board of Directors of the individual condo association. Whether they must live on-site, or whether they must be owners themselves, will be established in the condominium’s controlling documents (along with other requirements, such as being of legal age, etc.). [8]
Understandably, directors are advised to review the limitations placed upon their powers from all sources (documents, laws) and decide easily enough whether or not the Condo Board has the right and the power to undertake some action. Can the Condo Board borrow money from the bank to repair the crack in the foundation of a condo tower? Can the Condo Board offer unit owners the option of having satellite television access through a roof-top dish? The responsible directors do their homework and act accordingly.
However, many a lawsuit has been filed against condo directors and condominium associations because they have taken action which they had no legal right to do, or they have failed to do something that they are legally mandated to undertake.
For instance, a Condo Board may exceed its power to fund upkeep or enhancement of the common areas without performing due diligence to discern whether or not the Board has the authority to do so. The result is that the Condo Board of Directors may be liable for exceeding their authority under the condominium documents.
Condo Boards often get sued over whether decisions are made in funding and doing work regarding the common elements of the condominium. Under Florida law, there is no need for the Condo Board to ask for the vote of the condo unit owners — i.e., the full Condo Association — before going forward with work that is not “…not a material or substantial alteration or addition to the common elements.” Lake Region Packing Ass’n, Inc. v. Furze [9]. In these instances, Florida courts impose the “business judgment rule” which states that as long as the judge finds that the Condo Board has acted in a “reasonable” manner in passing the special assessment, then that decision will be respected even if the unit owners are unhappy with the Board’s action. Ferguson. [10]
When Condo Boards take action that exceeds the authority given to the board of directors under the condominium documents, e.g, purchasing land, then the condo unit owners are forced to file a lawsuit to fight against having to pay the assessments that will be needed to fund the board’s action. For example, in Ocean Trail Unit Owners Ass’n v. Mead [11], the trial judge found that board had exceeded its powers when it purchased property on behalf of the Condo Association and entered a judgment to that effect including an award of $194,079.37 in attorneys’ fees to the lawyers representing the unit owners.
Afterward, the board of directors filed an insurance claim against its insurance company, filed to rescind the land deal, and notified the 150 unit owners of a $500/owner special assessment that would be used to pay the attorneys’ fees as well as paying the judgments ordering a return to the unit owners of their original $1,500 assessment, which had been used to buy the property now held to be a land deal made without proper authority.
The Board settled with its carrier. Then, $630,000 was collected in the rescission action. These funds, in addition to the funds obtained from the special assessment, were used to reimburse all unit owners for the original purchase assessment.
The trial judge’s decision was appealed, and the Florida Supreme Court pointed out that while the judge was right in finding that the board of directors had been wrong to demand that the unit owners pay for the judgments, the result was to leave the condominium property as a whole vulnerable to liens by those who won those judgments. Accordingly, the assessments would have to be paid because this was needed to protect the owners from losing their real property. They could then proceed against the directors under a breach of fiduciary duty action.
As the Court explained [12]:
The district court’s decision, which approves nonpayment of assessments by owners, leaves the Association property vulnerable to levy and execution of the judgments. The court essentially evaluated the judgments against the Association and decided whether an assessment to pay the judgments could be enforced on the basis of its evaluation of the reasons for the judgments. However, it is the existence of the judgments that imperils the Association property. The judgments’ existence alone, therefore, authorizes the assessment and necessitates its enforcement.
As set forth in the final judgment entered by the trial court, the reason why the judgments were entered should not determine whether the assessments can be enforced. Rather, a unit owner’s duty to pay assessments is conditional solely on whether the unit owner holds title to a condominium unit and whether the assessment conforms with the declaration of condominium and bylaws of the association, which are authorized by chapter 718, Florida Statutes.
The unit owners elect the officers and directors of the association, and those officers and directors have a fiduciary duty to the unit owners. § 718.111(1)(a), Fla. Stat. (1987). Accordingly, if the officers or directors act in an unauthorized manner, the unit owners should seek a remedy through elections or, if factually supported, in an action for breach of fiduciary duty. The owners’ remedies do not include failing to pay an assessment to protect against a judgment which has been lawfully entered against the association.
It is the responsibility of the Condominium Association to make sure that all the common areas — the common elements like sidewalks, parking lots, and sewer drains, as well as swimming pools, spas, hot tubs, and tennis courts, are all functioning and well-maintained. Roofs, stairwells, electrical wiring, and plumbing are also common elements of a condominium that the Association must maintain.[13]
When the Condo Association fails to maintain these common elements, bad things can happen. Failure to make sure that the plumbing is working properly can result in a small leak turning into significant water damage for several units. Failure to keep up the roof after a hail storm or heavy winds (common in Florida) can mean massive roof leaks.
Many lawsuits are filed over Condo Board decisions to spend money for repairs and maintenance [14], and lots of condo unit owners are forced into lawsuits after their Condo Associations made decisions over repair and maintenance of the condo common elements. Sometimes this is when repairs and maintenance have not been completed. [15]
More often, these kinds of lawsuits are filed when Condo Boards make decisions and spend money on repairs and maintenance that the unit owner do not appreciate. For example, in Tiffany Plaza Condominium Ass’n, Inc. v. Spencer [16], the Condo Board was sued over spending money to build a rock revetment at an oceanfront condominium.
On appeal, the Court confirmed that the Condo Association would not be responsible for paying damages to the unit owners because the construction was necessary to protect a common element — here, the beachfront — from erosion. The individual condo unit owners legally were responsible for paying the assessment even though they did not consent or approve of the rock revetment.
Many condominiums have “no pet” policies or pet restrictions that limit pets to a certain weight limit or limit unit owners or the number of pets they may have in their homes.
More and more often, Florida condo unit owners are pursuing litigation against Condo Boards over unfair restrictions regarding pets.[10] These pet restriction cases are filed under the Fair Housing laws.
Here, the Condo Association is charged with discriminatory practices as the Condo Board has failed to make reasonable accommodations for the unit owner’s pet. Under the federal and state Fair Housing Acts [11], liability for the Condo Association can include not only actual damages as well as an injunction allowing the pet to remain, but the Association can also face compensatory and punitive damages along with paying the plaintiff unit owner’s attorney fees.
One recent example of a pet restriction case against Florida Condo Associations is Bhogaita v. Altamonte Heights Condominium Association, Inc. [12], where the federal appeals court issued its ruling in favor of the pet owner on August 27, 2014. In this case, the unit owner was a veteran suffering from Post Traumatic Stress Disorder and owned a therapeutic service emotional support dog named Kane who weighed more than the Condo Association’s pet weight limit of 25 pounds.
The Condo Board tried to oust the pet based upon the condo rule despite the unit owner’s request for an exception complete with three written psychiatric opinions to support the condo owner’s position. The Air Force vet sued and won under both state and federal Fair Housing laws.
If a Florida condo owner decides to sue his Condominium Association, Florida law does provide that the unit owner can recover both (1) the fees he has paid his lawyer and (2) the assessment fees he paid the Condo Association to defend the lawsuit. The law states that the unit owner can recover reasonable attorneys’ fees and additional amounts decided by the court as reasonable and necessary to reimburse him or her for his share of the assessments that were levied to cover the lawsuit’s defense.
However, it’s important to know that condominium residents will be required by the Condo By-Laws to keep current with their condo fees and assessments, no matter how much they would prefer to withhold paying them until the controversy is resolved. That means that they have to keep paying money into the opposing party’s pocket no matter how wrong it feels or unjust it may be – especially if that money is going toward helping the Condo Association pay its legal team to keep up the fight against you!
Whether or not you get all that money reimbursed to you will depend upon the judge’s determination of what is your “reasonable and necessary” reimbursement amount. This is something to consider as a practical matter before moving forward with litigation against the condo association.
Floridians choosing a Florida condominium as their home offers them not only an envied lifestyle here on the sunny Florida oceanfronts but also a tremendous amount of legal protections in place at both the federal and state levels as well as within the individual condominium controlling documents. However, the option of living a condo lifestyle does come with some sacrifices. Condo owners here must deal with the reality that there is a sharing between their fellow unit owners both in enjoyment and responsibility for the condo common elements as each unit owner is a part of the Condo Association. Moreover, the unit owner must have the patience and fortitude to deal with injustice in the form of negligence or wrongdoing by those designed to act on behalf of the whole, either as directors of the Condo Association’s Board or as managers hired to act on their behalf. This may well include a legal fight in a Florida courtroom for justice to prevail.
A good piece of advice if you are having a problem with your Condo board is to speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
_______________Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.
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[1] Florida Condominium Act, Florida Statute 718.111 etc.
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html
[2] State of Florida Department of Business and Professional Regulation’s Division of Condominiums, Timeshares, and Mobile Homes
http://www.myfloridalicense.com/dbpr/lsc/condominiums.html
[3] Florida Statute 718.111(1)
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html
[4] Florida Statutes 468.431, 718.111(3), 718.3025
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html
[5], [6] Florida Statute 718.111 (5)
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html
[7] Florida Statute 718.111 (5)
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html
[8] Juno By the Sea North Condominium Ass’n (The Towers), Inc. v. Manfredonia, 397 So. 2d 297 (Fla. 4th DCA 1980)
http://scholar.google.com/scholar_case?case=1357140511197104076&q=Juno+By+the+Sea+North+Condominium+Assn&hl=en&as_sdt=4,10
[9] Lake Region Packing Ass’n, Inc. v. Furze, 327 So.2d 212 (Fla. 1976)
[10] Farrington v. Casa Solana Condo. Ass’n. Inc., 517 So.2d 70 (Fla. 3d DCA 1987)
[11] , [12] Ocean Trail Unit Owners Association v. Mead, 650 So.2d 4 (Fla.1994),
[13] Florida Statute § 718.303(1)
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html
[14] See, e.g., George v. Beach Club Villas Condominium Ass’n, 833 So.2d 816 (Fla. 3d DCA 2002)
[15] Metro-Dade Investments, Co. v. Granada Lakes Villas Condominium, Inc., 74 So.3d 593 (Fla. 2d DCA 2011)
[16] Tiffany Plaza Condominium Association, Inc. v. Spencer, et al., 416 So.2d 823 (Fla. 2d DCA 1982).
[17] Federal and Florida Fair Housing Acts, 42 U.S.C. § 3604(f)(3)(b) and Florida Statute § 760.23(9)(b)
