Q&A: Can Condo Association Rules Override Fla. Law?
STUART, Fla. – Question: In our Association Board meeting minutes, the vote of each director has always been listed by name. Such as Director A – Yes, Director B – No, etc. Recently the Board president told the secretary to stop recording the votes in this manner and just record the outcome such as 3-yes, 2-no, motion passes. Is this legal? – S.F., Stuart
Answer: No, it is not legal. Both the Condominium Act and the HOA Act provide that “a vote or abstention for each member present shall be recorded in the minutes.” So, you must record the vote of each Director by name in the minutes.
Question: We understand that the Florida Statute regarding background checks indicates that in 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. Can the Condo Association make their own rules regardless of the Florida Statute? At the present time 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. – T.A., Port St. Lucie
Answer: 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 any body 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 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 association’s 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.” So, there is no “three month” rule. 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.
Question: When a motion is made at a board meeting and discussion is asked before a second, isn’t it a discussion among the board, not residents? – J.K., Vero Beach
Answer: 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 Homeowners Association 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.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. 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, Adamczyk, 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.
© 2020 Journal Media Group, Richard D. DeBoest II, Esq.
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