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?
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-
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.
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 email@example.com.