A very important change to Chapter 718 of the Florida Statutes (The Condominium Act) took effect July 1, 2018 that all Condominium Associations need to be aware of.

In House Bill 841, the last sentence in Section 718.113(2)(a), Florida Statutes was amended by adding the highlighted language: “Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to the real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced.”

Material alterations or substantial additions are basically any addition or improvement to real estate. This would include changing the paint color of the buildings (even minor changes in color), changing the type or color of tile or carpeting in the common areas or major landscaping changes.

There are some exceptions that have been carved out by Division arbitrators and courts not requiring a vote for certain alterations including adding a sea wall to protect the property, replacing river rock on balconies with tile and replacing asphalt with pavers. These exceptions are based upon protection of the condominium property and engineering recommendations.

Many condominium declarations, that have been rewritten and updated, will provide that the board of directors may make many material alterations under a certain dollar figure (usually somewhere between $30,000 and $50,000) and only require a membership vote if the alterations or additions will cost more than the dollar limit. This will allow many things to happen such as minor updates to the social room without having to get a membership vote.

However, most older or original declarations will be silent on this issue and therefore a 75 percent membership vote will be required for any and all alterations to the common areas (even ones that may only cost a few hundred dollars).

Before this new law change, that went into effect last month that mandated that the material alteration vote must be taken BEFORE the material alteration or substantial addition commenced, many boards would go ahead and approve the material alteration or substantial addition without a membership vote and take the risk that if an owner challenged them, they could always go get the membership vote after the alteration or addition was completed.

Now, it does not appear you can correct “not taking the vote” after the alteration or addition commenced. So, if your board does the alteration now before a vote, the association may very well have to pay for the cost of undoing the material alteration or substantial addition. All you will need is one dissident owner challenging the board for not taking the vote first. It won’t matter even if a vast majority of the owners like the alteration or addition and would approve a vote for it if a vote was attempted after the fact. Because the vote was not taken before the alteration or addition, the change will probably have to be undone if the dissident brings legal action against the association.

In addition, the directors, who allowed the alteration or addition without a vote, may be looking to the Association’s Directors and Officers liability insurance for any coverage after the fact to defend them if challenged.

So the lesson to be learned is that condominium associations with old documents need to update them to allow the board of directors to determine most alterations or additions that aren’t very expensive and go for the membership vote for the expensive alterations or additions.

Until old documents are updated, be sure to go get a membership vote first on all alterations or additions, even the inexpensive ones, or you may be paying twice to undo the changes that were not approved by the members first.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

The Florida Legislature looked favorably upon electric vehicle owners this session when it approved House Bill 841; a community association law affecting many aspects of community living including detailed new provisions to accommodate electric cars.

A preamble to the new law says: “The Legislature finds that the use of electric vehicles conserves and protects the state’s environmental resources, provides significant economic savings to drivers, and serves an important public interest. The participation of condominium associations is essential to the state’s efforts to conserve and protect the state’s environmental resources and provide economic savings to drivers. Therefore, the installation of an electric charging station shall be governed as follows:

The new law then lists five provisions or conditions concerning electric vehicle charging stations as follows:

1. A condominium declaration, restrictive covenants or the board of directors may not prohibit any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area.
2. The installation cannot cause irreparable damage to the condominium property.
3. The electricity for the charging station must be separately metered and the unit owner must pay for the electricity.
4. The unit owner installing the charging station is responsible for the costs of installation, operation, maintenance, repair and insurance of the station. The association can collect these costs the same as collecting assessments.
5. If the unit owner, or unit owner successor decides there is no longer a need for the electronic vehicle charging station, they must pay for the cost of removing the station. The association can collect the costs of removal the same as collecting assessments.

The association can require the unit owner to comply with safety requirements and building codes, comply with reasonable architectural standards, engage the services of a licensed and registered and electric charging station knowledgeable electrical contractor or engineer, provide a certificate of insurance naming the association as an additional insured within 14 days of approval of the station, and reimburse the association for the actual cost of any increased insurance premium amount attributable to the charging station within 14 days of receiving the association’s insurance premium invoice.

The association provides an implied easement across the common elements to the unit owner for the purpose of installing the station and furnishing electrical power and any necessary equipment to the station. Labor and material furnished for the installation of the station cannot be the basis for filing a lien against the association but a lien can be filed against the owner.
We know that many condominium associations have considered installing communal charging stations on the common elements so that those with electric cars can share a station and the cost of installation and the electric usage. This appeared to be a good idea to minimize the amount of rewiring and electric lines that would need to be installed on the common elements.
However, it appears now that even if you allowed or installed the communal stations, any owner with an assigned parking space now has the right to pay for the installation of a personal charging station at his parking space along with the requisite electric lines, breakers and meters necessary to do so. This could cause a lot of ongoing upheaval and disruption if many owners opt to install at various time charging stations at their individual parking spaces.

It will probably be pretty expensive to set up individual stations at each parking space, so many electric car owners can probably be persuaded to join in the cost of installing joint stations which would minimize the overall number of them. A board though could not force every electric car owner into using a joint charging station and if one or more owners really want to pay a lot more for their personal station, it looks like you cannot stop them now.

This appears to be another new example of government using its powers to promote the nudging of people out of conventional gasoline powered vehicles and into electric cars.
Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

Now that Irma has come and gone and most of the dry out and cleanup has occurred, we are getting many questions from condominium association directors and officers asking how can they button up their windows, doors and sliders in the future to better avoid damage next time a hurricane may come our way.

Under Sections 718.113(5) and 718.115(e), Florida Statutes, if the maintenance, repair and replacement of hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection is the responsibility of the association in the Declaration of Condominium, the association may install such hurricane protection and assess all owners the cost thereof as a common expense.

If the maintenance, repair and replacement of such hurricane protection is the ‘Owner’ in the Declaration, then if the association obtains a majority vote of the voting interests, it can install the hurricane protection and charge individually to the unit owners based upon the cost of installation of the hurricane protection appurtenant to the unit.

In most declarations, hurricane protection is not discussed, but windows and doors are usually the maintenance, repair and replacement responsibility of the owners. If the whole building had hurricane shutters installed initially when developed, then usually the maintenance, repair and replacement of them is the association. Otherwise, usually some of the owner installed hurricane shutters on their windows and lanai as an alteration making them responsible for such shutters maintenance, repair and replacement.

If the board does not want to be in charge of installing the hurricane protection, but would rather leave it up to the individual owners to install the protection at their units but still wants to make sure everyone installs the protection, it can try to get a membership vote to amend the Declaration of Condominium to require the owners to install the protection by a certain date.

Most engineers and professionals in the hurricane protection industry will agree that the best way to protect the building from hurricane force winds and rain is to have all unit and common areas windows, sliders and door openings to the building protected. If just one window or door is broken or breached, the wind and rain can get in and cause much damage throughout the building. So, if you are looking for real protection, a plan should include installing hurricane protection on all potential openings in the building.

You may also find, that once hurricane protection has been installed in the entire building, you may get a break or credit in the association’s building insurance as well as maybe individual unit owner insurance.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

With many of the local condominium and homeowners’ associations clubhouse buildings now reaching 30 to 40 years of age, many associations are looking at doing major remodeling projects to the inside or outside of the buildings to keep their look competitive with new products reaching the market.

Because such improvements are considered material alterations, it first must be determined if a membership vote will be required to make the changes to the common elements or the common areas.

Section 718.113(b), Florida Statutes provides that: “there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions.”

Therefore, in condominium associations, you need to first look at the declaration to determine what vote of the membership will be required for the material alteration remodeling. If the declaration is silent, then you will need the 75 percent approval vote of the members.

For homeowners’ associations (HOAs), there is no similar provision in Chapter 720, Florida Statutes. Therefore, you would look to the declaration of covenants to see if any membership vote is required. Typically in HOAs, no membership vote is required, so the association board and/or architectural review committee can decide on the alteration.

After determining what vote is needed to make the changes, you must then decide how the alterations will be paid for. There are four ways to pay: 1) use operating funds or increase the budget to raise the assessments for the next year, 2) levy a special assessment, 3) borrow money from a bank or financial institute, or 4) borrow from reserves.

Usually, you do not have enough extra money in the association’s operating account to pay for the remodel project, so if you are not going to do the work until the next year, you can increase next year’s budget to cover the costs. As the board approves the budget, you probably don’t need a membership vote.

However, most associations don’t want to make large increases in their regular assessments from one year to the next because members plan their personal budgets on paying about the same every month or every quarter for their regular assessments.

Instead, you could levy a special assessment wherein the members have to pay one or more lump sums over time to cover the costs. You may or may not need a membership vote for the special assessment depending upon what your bylaws or declarations provide.

The next option is to borrow the money from a bank. Most associations don’t need a membership vote for the association to borrow money, but check your governing documents because some require a membership vote to borrow. You can pay back the bank loan over time, then with spread out increases to the future annual budgets. You will also have to factor in interest.

The last option is to borrow from reserves. If you have not set aside a reserve line item for remodeling, you will definitely need a vote of the members in a condominium to borrow reserves and you might need a vote in a HOA.

Section 718.112(2)(f)3, Florida Statutes provides that: “Reserve funds and any interest accruing thereon shall remain in the reserve account or accounts, and may be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority vote at a duly called meeting of the association.”

A similar provision is provided in Chapter 720 for HOAs requiring a membership vote to borrow from reserves if reserve accounts were established by the developer or the membership elected to provide for reserves.

So make sure you get the proper vote of the members or the board before you start on that upgrade remodel project.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

With the return of snowbirds in season, we start getting phone calls from associations telling us some condominium unit owners are complaining about the conduct of their neighbors and they want the association to do something about it. The complaints are usually about either noise or smoke emanating from a neighboring unit or unit lanai. The owner complaining usually wants the association to get their neighbor to quit smoking or quit creating noise.

Under the general theories of nuisance law in Florida, the law will protect a “reasonable man” from things that are unreasonably bothering him. However, the law will not protect a “supersensitive” person from others’ conduct that is bothering him but would not otherwise bother the reasonable man. Some people are supersensitive or allergic to smoke, or mold, or light, or peanuts, or cats or noise, or pesticides. When supersensitive persons have such conditions, some may think that the non-sensitive persons living around them must legally accommodate their sensitivity conditions.This is not the case.

Condominium associations must enforce nuisance provisions in their documents when an actual legal nuisance arises. However, it is not required to, nor should it enforce, that which is considered a nuisance only to supersensitive people.

If an association receives a noise complaint from a unit owner that the neighbor above is being too loud and keeping the owner up at night, before the association can do anything for that owner, it must make an independent determination as to whether the noise emanating from the unit above does in fact rise to the level of a nuisance that would affect the “reasonable man.” There are all kinds of noises in condominium buildings that many unit owners must put up with as normal building noises and the law says there is nothing wrong with such noises as they are part of building living.

In such a noise complaint case, the association should tell the owner, who is complaining, that before it can take any action it needs to make an independent determination as to whether the noise complained of would be considered an actionable nuisance to a reasonable person. In order to make such a determination, the association will have to have representatives “camp out” in the owners unit so that the representatives can listen to the noises complained of and determine if they find them unreasonable.

Many owners will not want association representatives hanging out in their unit, and if they don’t, they can always bring a nuisance legal action in the local courts directly against their neighbor and hire their own attorney to do so. However, the association cannot help the complaining owner any further if the owner refuses to let association representatives in their unit to make an independent determination of the severity of the complaint.

For those owners, who do allow the association to camp out, if the representatives listen and believe the noises are normal building noises that many have to put up with and would not therefore be considered a nuisance to the reasonable man, then the association can do nothing further for the owner.

If the representatives believe the noises are unreasonable and a nuisance, then the association would send a letter to the neighbor and tell them to abate the noise and if they do not, then the association will bring legal action against the neighbor by first bringing a mandatory arbitration action with the State of Florida in Tallahassee. Such a State arbitration action can take up to six (6) months or longer. Thus, it may be a long time before any relief to the complaining owners as the arbitrator could send the matter to mediation and then either party can appeal whatever finding of the arbitrator in the local courts.

Therefore, when it’s a neighbor v. neighbor nuisance action, it is usually much quicker for the complaining owner to just go after their neighbor legally in the local courts on their own. Even if the owner decides to go after his neighbor on his own, the owner must still realize that if he is supersensitive, there is a good chance he will lose in court as the nuisance laws generally protect the reasonable person and not the supersensitive.

When it comes to smoking, a building can always amend it declaration of condominium to go to a non-smoking building if the requisite vote of the members to amend the declaration is obtained. You might have to grandfather current smokers in the building to get the required vote.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.