Condo signed contract, imposing monthly internet fee without a vote. Is that legal?

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: Every unit in our condominium has always used their own cable and internet providers. Now, our board is forcing us into a mandatory monthly fee internet charge—pushed through with no member vote. Is this legal? How can the board increase our year-over-year expenses without the owners having a say? Signed, S. K.

Dear S.K.,

With this, as with so many other community association matters, you do have a say — you are responsible for electing the board of directors that makes decisions like this, and a majority of owners can remove that board if you don’t agree with those decisions.

The Condominium Act provides that a condominium board has the right to enter into a bulk communications services agreement for all owners, including for television or internet services; and that the cost is a common expense, which may be equally divided among the owners, even if the common expenses are not generally split that way. So, your board had an express right to contract for internet services for everyone in the building as a common expense, and everyone is obligated to pay for those services, even if you are already getting the services through another provider. The Board can’t prevent you from continuing to use your own service in addition to the bulk service, but that doesn’t absolve you of the responsibility to pay for the bulk services.

Homeowner associations, trustees and who can vote on what

Question: Our homeowner’s association has just realized that many of the homes in our community are held in trusts. We have had many votes over the last 20 years where the principal homeowner voted. Now the board realizes that the number of houses held in trust where the homeowner voted was not valid and in fact, we probably never met the requirements for a quorum. How do we resolve this? Signed, B.F.

Dear B.F.,

A trust is a form of ownership where a trustee (or multiple trustees) serves in a fiduciary capacity and owns property for the benefit of one or more beneficiaries. The trustee is tasked with doing whatever is necessary to maximize the benefit of the asset for the beneficiary.

There are really only two relevant persons in a trust relationship — the trustee, who can be considered the owner of the property for most purposes; and the beneficiary, who, depending on the type of trust and as provided in the Not For Profit Corporation Act, can also sometimes be considered a member of the association, eligible to vote and serve on the board.

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So, whether these “principal homeowners” were the trustees or the beneficiaries, there’s a good chance they were in fact eligible to vote. It depends on how trust voting is described in your bylaws, but I’m having difficulty understanding who else this “principal homeowner” could be, such that they should not have been voting. The only homeowner in a trust relationship would be the trustee; and that person is generally eligible to vote.

As for correcting the problem (and assuming there really was a problem), the statute of limitations to challenge most community association issues is five years. So, any vote that occurred prior to that would stand whether it was valid or not. Any questionable vote since that time could simply be re-done, if you are concerned that someone is going to raise a challenge before the statute of limitations; but I would review this issue carefully with the association’s attorney beforehand, as there may not actually be an issue here (or at least, I’m having difficulty understanding where the issue might be).

Can my condo change the way it charges owners for common expenses?

Question: In a recent column, you mentioned that the approval of every owner was required to change the allocation of common expenses in a condominium. Yet, 75% of the owners is required to change the governing documents of our condominium.

Two years ago, our board initiated a change in the documents allocating maintenance by square footage rather than each unit paying an equal amount. Since more than 75% of the units benefitted from the change, the amendment passed easily, though a number of unit owners voted against the proposal.

Was that a legal action by the board and the association? Signed, T.B.

Dear T.B.,

Probably not. The Condominium Act, at Section 718.110, Fla. Stat., says that, unless permitted by the original declaration, “no amendment may…change the proportion or percentage by which the unit owner shares the common expenses of the condominium…unless the record owner of the unit and all record owners of liens on the unit join in the execution of the amendment and unless all the record owners of all other units in the same condominium approve the amendment.”

I cannot recall ever seeing a declaration of condominium expressly stating that it could be amended to change the proportion or percentage by which owners share common expenses. It’s conceivable that yours does, but unlikely. If not, the amendment required all owners to consent; and if some objected, it did not pass. I would recommend that the objecting owners contact an attorney to discuss whether a legal challenge is warranted.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Must condo hold vote before contracting for cable, internet services?