Condo Q & A

Q: A Unit owner in our condominium has submitted a Power or Attorney naming her son as her power of attorney for all matters involving the condominium. The son has now submitted his name as a candidate for the Board of Directors on behalf of his mother, the owner of the Unit. The Bylaws require Directors to be an owner or the spouse of an owner. Is the son eligible to run and if elected serve on the Board? S.B., Fort Myers

A: No, he is not eligible. The Florida Administrative Code 61B-23.001(3) which is applicable to condominiums provides that “Where the Declaration, Articles of Incorporation or Bylaws preclude non-unit owners from serving on the Association’s Board of Administration, one acting under a power of attorney from a unit owner is similarly precluded from serving on the board unless he or she is a unit owner.”

If your Bylaws require that Directors must be Owners or spouses of Owners then in your case, the son of the Owner would not be eligible to run or serve on the Board using a Power of Attorney.

Also, it is important to review the power of attorney when it is submitted. Unless it has language specifically allowing the person named as the POA to deal with matters involving the Unit or Parcel it may not be sufficient to allow the person to do so. You should consult your Association’s legal counsel to determine of the POA is legally sufficient.

This answer would in my opinion also apply to cooperative and homeowner associations.

Q: Our community is non-gated. The board recently installed cameras around the community with a screen monitor in the office. The purchase was voted by the 7-member board without approval of the homeowners. Three officers in private also decided they would connect their personal cell phones to the monitor. It is like “big brother” is able to watch the “coming and goings” of the community. Are there any legal issues with selected board members having this access out of the office of the complex? Your thoughts will be most appreciated. H.W., Ft Myers.

A: If your community is a Condominium or a cooperative the installation of cameras would be considered a material alteration of the common elements that would have to be approved by a vote of the owners unless your declaration provides otherwise. If however the Board could document a security need for the cameras then likely no vote of the owners would be required. If your community is an HOA governed by Chapter 720, Florida Statutes no material alteration vote of the owners would be required, and the Board could approve the installation. As for who has access to the live feed from the cameras that would also be a Board decision. While it may seem a little creepy for individual Directors to have the feed on their phones there is no expectation of privacy on the common areas so there is no invasion of privacy issues that I see.

Q: Our Board of Directors of our Condominium has recently voted to sign a contract with a vendor that would provide cable and internet service for the entire community. I understand that under Florida condo law there is a provision that allows the membership to force a community wide vote to rescind that contract. Is this true? How does the membership exercise this right? P.B., Fort Myers

A: Yes, that is correct. Section 718.115(1)(d) of the Condominium Act provides the following:

“718.115(1)(d) If provided in the declaration, the cost of communications services as defined in chapter 202, information services, or Internet services obtained pursuant to a bulk contract is a common expense. If the declaration does not provide for the cost of such services as a common expense, the board may enter into such a contract, and the cost of the service will be a common expense. . . .

1. Any contract made by the board on or after July 1, 1998, may be canceled by a majority of the voting interests present at the next regular or special meeting of the association. Any member may make a motion to cancel the contract, but if no motion is made or if such motion fails to obtain the required majority at the next regular or special meeting, whichever occurs first, following the making of the contract, such contract shall be deemed ratified for the term therein expressed.”

So, if your Declaration of Condominium does not provide that bulk communications services are a common expense the Board can enter into a contract and make them so at a properly noticed Board meeting. If the Owners disagree then no later than the next members meeting following the Board meeting the Owners can cancel the contract on a majority vote. The Statute does not explain whether the vote is a majority of the total voting interest or just those voting at the meeting. Typically, the Bylaws of the Association provide that votes of the owners that are not otherwise expressly discussed in the Bylaws or the Statute only require a plurality of those actually voting so that is a majority of those who actually vote. The key here is the vote must be taken no later than the next members meeting, special or regular. By the way the HOA Act, Chapter 720, and Cooperative Act, Chapter 719 provide the same rights for owners in homeowner and cooperative associations.

Q: I own a first floor ground floor corner condo in a 100 unit building built in 1970’s. The drinking water lines run under my cement floor. The lines have broken for the second time and flooded my unit. The exposed pipes (about 4 ft under the concrete) look rusted and flaking. They have fixed the pipe and poured new cement. Is the condo association responsible for fixing up my unit? P.S., Fort Myers

A: Your question raises several issues. First, if the pipes failed suddenly without warning and flooded your Unit then likely this would be considered an insurable casualty loss and the Association’s insurance would cover the cost of repairing all damaged parts of your unit except floor coverings, wall coverings and personal property. With that said, now that the pipes have failed twice and are very old the Association is likely on notice that this problem will reoccur if not beneath your Unit certainly others. If the Association should reasonably be aware that the problem is going to continue to occur and does nothing to prevent it from happening (i.e. replacing the pipes), then the Association may be considered negligent in maintaining the common element property. In such cases the Association would be responsible for the damage caused to your floor covering, wall covering, and personal property and it is possible the that the Association property insurer may deny future claims because the failure was not an unforeseen accident.

Attorney Richard D. DeBoest is a shareholder at the law firm of Goede, DeBoest & Cross. Visit the website at www.gadclaw.com or ask questions about your issues for future columns by sending an inquiry to: info@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, 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.

This article originally appeared on Fort Myers News-Press: Condo Q & A