Oct. 18, 2016
STUART, Fla. – Oct 17, 2016 – Question: Has the law been amended to authorize the Division of Florida Condominiums, Timeshares and Mobile Homes to investigate complaints against homeowners' associations? – R.P., Vero Beach
Answer: No. Neither the Division of Florida Condominiums, Timeshares and Mobile Homes, nor any other governmental agency has statutory authority to investigate complaints against homeowners' associations at this time. However, election disputes and recall disputes are regulated by the division. As such, when owners stand up at HOA meetings and threaten to "report the board to the state," I always chuckle a bit as there is no such state agency. If an owner wishes to legally challenge a board's actions he must first offer pre-suit mediation and then, if the case is not settled, he must sue the board in the local courts. Note the division also handles complaints regarding co-operatives.
Question: Recently, we found out that a director on our condominium board accepted a gift card for a local restaurant from one of the vendors that provides service to our association. Is this legal? – D.P., Stuart
Answer: No, unless the card was given in connection with a trade show or educational program. Florida Statute 718.111(1)(a), the Condominium Act, provides that: "An officer, director, or manager may not solicit, offer to accept, or accept any thing or service of value for which consideration has not been provided for his or her own benefit or that of his or her immediate family, from any person providing or proposing to provide goods or services to the association. Any such officer, director, or manager who knowingly so solicits, offers to accept, or accepts any thing or service of value is subject to a civil penalty pursuant to s. 718.501(1)(d). However, this paragraph does not prohibit an officer, director or manager from accepting services or items received in connection with trade fairs or education programs." This same law is also found in the Chapter 719, the Cooperative Act.
Interestingly, the Homeowners Association Act section, 720.3033(3) is slightly different. It provides "An officer, director, or manager may not solicit, offer to accept, or accept any good or service of value for which consideration has not been provided for his or her benefit or for the benefit of a member of his or her immediate family from any person providing or proposing to provide goods or services to the association. If the board finds that an officer or director has violated this subsection, the board shall immediately remove the officer or director from office. The vacancy shall be filled according to law until the end of the director's term of office. However, an officer, director, or manager may accept food to be consumed at a business meeting with a value of less than $25 per individual or a service or good received in connection with trade fairs or education programs."
Question: I live in a condominium. I have a limited common element boat slip. I want to sell my unit but keep the boat slip for my personal use. The association says I cannot do this. Is this true? – Z.A., Hutchinson Island
Answer: Yes. A limited common element is an appurtenance to a unit in the condominium. A limited common element cannot be separated from the unit to which it is appurtenant except if it is made an appurtenance to another unit in the same condominium. This is somewhat common when owners trade parking spots, which can be done if the declaration allows for it. However, under no circumstances can a limited common element of any type be owned separately from a unit. So you cannot sell your unit and keep your boat slip.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross. Visit www.GADClaw.com or ask questions about your issues for future columns, send your inquiry to: question@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, Adamczyk, DeBoest & Cross, 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.
Editor's note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Copyright © Richard DeBoest, special to Treasure Coast Newspapers