July 2012

Should Size of Home Effect Fees for Maintenance?

By Richard White

Q- Budget Equal Payments Unfair:

Included in our budget are two line items that seem to be unfair. One is our lawn service and another is the painting reserve. Since the homes are different sizes from a small two bedroom to a large four bedroom, two-story home, the expenses should be different to maintain. However, we pay the same for the services. Is this fair and are there violations of laws for these unfair charges? Because we are living in a small home, it seems that we are paying for services for other homes. PW- Tampa

A - Over the past few years, the word “fair” seems to come up more and more in the questions sent to me. I grew up being told that life is not fair, and you must make the best decision when you are confronted with a problem. Events in life and opportunities presented and how we deal with these situations will be determined by what we know and believe. Are you aware that each association has a set of documents that defines how the association operates and what rights, obligations, and duties the members have? When you purchased your home, you agreed to comply within these document boundaries. That was the time to ask the questions, as you then had the choice to say I will agree with these rules and operations or say I do not agree and will not purchase the home. My guess is that well over 75 percent of new purchasers never read these documents and the rules and regulations. That is a huge error on their part as they are bound by these documents. Some place in these documents, it defines how the fees are to be divided and charged. My guess is that your documents define that all expenses shall be divided equally or at a certain percentage. If that is true, then you accepted that requirement when you purchased your home. Think of it this way, the equal charges may require you to pay the same for unequal services, but that was the way your association was created. The final answer is that there is no fair way or unfair way for the association to operate. The purpose of the documents is to establish the policies and operations.

Q- Service Dogs:

I am having issues with our board and management. I need some guidance for resources to help solve my issues. The board and management are not responding to our requests in a timely fashion or do not act at all. Can I withhold my fees or part of my fees until they take action? It all involves obtaining a service dog I need for my health. Since our rules say no dogs, the board is not granting authorization. Our local HUD and ADA came to our assistance. What is our next step to force the board and management to grant our request? BS- Dunedin

A - Do not withhold your fees as this is not part of the problem. If the proper documents are provided to the board requesting a service dog (companion pet), the board has no valid reason to refuse the dog. One of the necessary documents that should be required is a letter from a doctor saying that you need a companion/service dog. The dog or pet must have certificates that indicate the companion pet has been trained as a service dog or companion pet. You will also need medical reports from a veterinarian certifying that the companion pet has proper shots and is in proper health to serve as a companion pet. Once an attorney advised me that anytime a member has an ADA claim, I should take immediate action to comply with their needs. That means that you have a valid medical need for the service dog or companion dog.

Q- Board Duties:

I would like to have the state rules for our board duties. I would like to know the rules as a resident and board member. Can you guide me on how I can obtain this information? MK Weeki Wachee

A - The answer is not a one-source document. The answer is not complicated, but it does require effort. I could say simply, do unto others as you would like them to do to you. Keep in mind that the association should not be a “mom and pop” operation but operated as a business. That means the board will have the same requirements as any large commercial corporation board of directors. While the statutes for the type of association, such as FS 718, and the corporation statutes, such as FS 617, provide some of the answers, your association documents will also have requirements for the board of directors and officers. The state has published a pamphlet called “Condominium Unit Owners Rights and Responsibilities,” but it applies to HOAs as well. Let me begin before I abridge this pamphlet by defining the board duties. Directors are responsible for the operations and maintenance of the common areas and association. Officers and management have duties that are defined in the statutes, the documents, and the instructions of the directors. In simple terms, the directors are responsible and the officers only have duties. The pamphlet says that owners are responsible to pay their fees on time, respect and use the common areas properly, and comply with the statutes and documents. It also says that an owner should attend and participate in meetings, volunteer to work on committees, serve on the board, vote on issues presented and at elections, cooperate with other owners in day-to-day community life, bring any concerns or problems to the attention of the board, and be familiar with the statutes and the association’s documents. The one thing that is not in the pamphlet is the final responsibility to be a member of the community. In the end, the owners are the ones that pay for the maintenance and operations. If the board fails, then the owners must pay.

Q-Manager’s Duties as A Chairperson:

I must disagree with one of your answers about a manager acting as the president. This is ridiculous. Managers can run the meeting if the board so chooses but cannot be the president if he is not a member of the association. Will you reprint the correct answer? RC- Naples

A - In the statutes, there is no requirement for a director or officer to be a member of the association or a resident full-time or part-time. Your documents may have such a requirement. This is an infrequent requirement as most documents do not address that ownership or residency is a requirement to serve as a director or officer. Therefore, almost any person can be elected to the board of directors and serve as an officer. While I do not recommend that a manager serve as the president, my reference is that the manager would then have too much authority. However, I have known associations that have the need for the manager to take control and operate as the president. As one example, the board and most of the small condominium owners were professionals (doctors, attorneys, and elective officers for large corporations). These men and women did not have time to manage the affairs of the condominium. They met once a year and gave all executive decisions to the manager who was elected as the president. Legally there is nothing wrong with this operation. To your question, there are times that the manager can legally be president. As to conducting meetings as the chairperson, most managers are trained to be fair and follow the agenda and keep the meeting on time. You do want short meetings that accomplish all the agenda items do you not?

Q- Robert’s Rules:

During a board workshop, they established that Robert’s Rules of Order would be used. During the meeting, they voted and approved a motion with no input from the members present. They allow any discussion only after the meeting. I would appreciate your thoughts and recommendations on this circumstance.PE- Clearwater

A - While the board is allowed to set meeting policies and Robert’s is one of the options, they needed to follow their own policies. However, if they called it a workshop, in the eyes of the state statutes, it was an illegal meeting. If a quorum of directors is meeting to discuss association business, it is a board meeting. If less than a quorum of the directors is meeting, it could be considered a committee meeting. Usually, committees do not make final decisions or take final votes. Any board can set the meeting policy, but they should follow their own policies.

Q- Agent Rental Agreement:

We own a vacation unit condominium. [Most areas of Florida do not have vacation communities. In central Florida near the theme parks, developers have built communities where short-term rentals can serve visitors who want short-term rental homes. It is considered to be investment property.] The developer owns most of the units and has hired a property manager, who is licensed as a community manager and also a real estate agent, to rent the properties. When we received the monthly statement from the manager, we noted that she has been renting the unit at a discounted rate or at a lower rent than we agreed. We sent her a letter instructing her to only rent at the agreed rate, but, as of this date, we have not received any communications from her. We have filed a complaint with the state department of condominiums. What is our next step? ER- Winter Haven

A - You should have a rental agreement with the agent. That formal agreement should state the amount and terms for the agent. If they do not, then you would report the problem with the Real Estate Department. It may take an attorney to take action to enforce the agreement maybe in a court case. If you have the rental and property management agreement, read it to find out what terms you have agreed to and also find out how you can cancel the agreement. While you can file a formal complaint, you can also try to cancel the agreement or negotiate a new agreement. The final solution is to sue the real estate agent.

Richard White is a long-time licensed manager who lives in Florida. He answers questions on a wide variety of community issues. You may send your questions to Richard at camquestion@cfl.rr.com.