The Condo Lawyer
My name is Inger Garcia. I have been an attorney in private practice since 1991 in Georgia and since 1997 in Florida . Prior to that, I worked as an Intern Assistant State Attorney for Janet Reno in Miami . I have also interned for numerous Judges, as well as, my Law School Trial Program Director. I have been involved in real estate and/or litigation for over 16 years.
In trying to help clients of mine in the past in condominium related issues, the biggest brick wall that we would hit was the lack of obvious cohesive support from the enforcement entities and the unit owners themselves, and lack of understanding of condominium law. The problem was that there was no way to enforce the laws in any meaningful way, even though they existed. The obvious lack of education and knowledge that the actual Associations and Board of Directors do have is a significant problem. Their attorneys have “no obligation to inform them of the law,” or so I was told.
Condominium Owners were considered “the minority,” and still are today. However, do the math. Condominium Owners are the majority and need to act as such to make any significant changes. Now is the time to act as a cohesive group and to protect our rights as Home Owners. A wise politician told me recently, at a meeting on Galt Ocean Mile, that the Condo Owners would get no help with their problems until “they became the majority, not the minority.” Since Condo law is created by our legislature due to the fact they are creatures of statute, now is the time for the Condo Owners to unite and act. Now is the time to either change the law or enforce the law, and to inform their Associations, Managers, and Board of Directors to follow the law or suffer the consequences.
Many citizens in Broward County have expressed the need for change in the operation and management of condominiums. We are diligently working on establishing a Pilot Program similar to the one in Miami-Dade County established by Representative Julio Robaina where the FDLE, the State Attorney’s Office, and the Ombudsman Office will train the local law enforcement office to investigate the fraud leg of the many complaints that the unit owners have. These complaints include the criminal actions of the Associations or the Board Members such as issues concerning missing money, kickbacks, theft, embezzlement, misappropriation, and other illegal behaviors.
The governing Administrative body is the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation. They implement the fines and civil end of the enforcement in relation to Condo matters. They can file suit in court to enforce their findings. However, they do not have the “teeth” to criminally prosecute themselves. Therefore, in the past, there has been no effective way to enforce the correct behavior on the Associations and Board of Directors and Managers. That is about to change if we have any say so.
As a condominium owner myself, I understand the trials and tribulations you deal with on a daily basis. Some of you are dealing with a situation where you feel you have no constitutional rights, no privacy rights, and no accountability for your hard earned money that is “assessed” and “special assessed” over and over again. You are not being informed of meeting, votes are being conducted improperly and worse yet, someone is maybe stealing from the till, and no one will produce the documents to prove it. It seems that that the “Board of Directors” or “Managers” are a mini Nazi community conducting themselves with no consequences for their actions. Well, there actually are laws that govern the Board of Directors for your condominium and those laws must be followed strictly or there are consequences.
This article is not meant to be legal advice, but some general information to point you in the right direction and to help you understand that there is a right and wrong way to meet your responsibilities as a Director and that the Condo Owner does have rights that can be enforced; administratively, civilly and even criminally.
The governing law for condominiums is Florida Statute, Chapter 718, and Florida Administrative Code, Title 61, Chapter 61B-21, 61B-22, and 61B-23. Florida Statute 718 governs Condominiums and is known as the “Condominium Act,” and every single Condominium is subject to the provisions of this Chapter. Condominium Documents (Declaration, Article of Incorporation, and By-Laws) cannot lawfully provide for procedures that are inconsistent with the Condominium Act. The purpose of this law is to give statutory recognition to the Condo form of ownership and to establish the procedures for condominiums. Because of the unique problems in condominiums such as the closeness of proximity and common facilities, each unit owner must give up a certain degree of freedom; however, that is balanced by the requirement of strict adherence by the Condo Association and its Board to the Condo Declarations and Florida Law.
Florida Statute 718.103 set forth the definitions of Assessments, Special Assessments, Voting Interests, Associations, Board of Directors, Bylaws, Common Elements, Common Expenses, Condominium, Declaration of Condominium, among other terms. The main document of a Condominium association is the Declaration of Condominium, along with its attached Exhibits, Articles of Incorporation, By-Laws and Rules and Regulations.
The Board of Directors is responsible for the proper administration of the Association and operation of the common elements and limited common elements. This includes the maintenance of Official Records, the making and collecting of assessments, lease, maintain and repair of the common areas and limited common areas, handling of the condominium meetings and minutes, management, accurate financial reporting, accountability for assessments and special assessments, voting procedures, inspection rights, maintaining adequate insurances, and emergency decision-making. This also includes acting as a fiduciary to the unit owners and not breaching that fiduciary duty. This includes keeping the condo safe, secure and clean, and keeping each unit free from breach of quiet enjoyment, trespass or other intrusions from the other units.
The Board of Directors has a direct responsibility and accountability for its actions to you, the unit owners. Florida Statute 718.111, The Association, sets forth the law in relation to the Associations responsibilities and its Officers and Directors fiduciary responsibilities to the unit owners. For Example, the Officers and Directors may not accept solicit, offer to accept or accept anything or service of value that is not provided for in their compensation package for any provider or proposed provider of any goods or services to the Association. If they do, it is a violation of Florida Statute 718.50(1)(d). If a Director is present at a meeting of the Board, he/she is presumed to assent to the action taken by the Board at that meeting, unless they vote against or abstain from voting due to conflict of interest.
Florida Statute 718.112, titled, Bylaws, sets forth the required provisions that are needed in the Bylaws, including the powers, duties, manner of selection and removal, and compensation of the Officers and Board of Directors. Each unit owner should review a copy of their bylaws and any amendments made to it, a copy of which must be kept by your Association for your inspection. This statute sets forth the proper manner of the administration of the Association, the voting requirements and the procedures and time frames involved, the Board of Director meeting procedures, the Unit Owner meetings procedures including felony related issues, your ability to tape record the meetings, the annual budget requirements (718.504 (21)), the assessments and common areas (718.113), the amendments to the Bylaws, the recall of Board Members (718.301), and Arbitration requirements (718.1255). Violations are fined according to Florida Statute 718.303.
Florida Statute 718.113 titled Maintenance; limitations upon improvements; display of flag; hurricane shutters, states that the maintenance of the common elements is the responsibility of the association. It also states that, unless an exemption applies, that there shall be no material alteration or substantial additions to the common elements or to real property, except as provided for in the Condo Declaration as recorded and if not specified in that instrument, the approval for the alteration or additions must be by 75% of the total voting interests of the association. The definition of “material alteration or addition” means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design, plan, or existing condition, in such a manner as to appreciably affect or influence its function, use or appearance. If you as a Unit owner believe that an improper alteration was conducted in your building, request a copy of the Condo Declaration, as recorded and any amendments, the Bylaws and minutes of the meetings where the votes took place. If it was in the last year, you will still have access to the voting documents, ballots etc.
Florida Statute 718.115 deals with common expenses and allows the expenses of operation, maintenance, repair, replacement, or protection of the common elements, costs of carrying out the powers and duties of the association, and other expenses set in the Condo Declaration, the Articles of Incorporation, and the Bylaws. These expenses do include reasonable transportation expenses, insurance for the directors and officers, road maintenance and operation expenses, in-house communications, and security services, cable television by bulk contract and hurricane shutters for the common areas. If you are receiving food stamps or SSI and you do not want cable service, you may opt of paying that portion of your assessments by following the procedures that allow this reduction.
By now, it should be apparent that you as a Unit Owner need to have and review your condominium documents. This is the first thing any lawyer is going to ask for if you seek legal advice or representation.
Unit Owners can be specially assessed to pay any judgments, attorney’s fees and costs associated with a lawsuit brought by a unit owner against the association as a common expense. Also, remember that if you win as the Unit Owner, that you may not be responsible for your share of the special assessment and are entitled to your reasonable fees and costs. The DBPR can assess civil fines and penalties, and issue cease and desist orders that are enforceable in the circuit courts in your jurisdiction.
According to Florida Statute 718.123, you as a unit owner have the right to assemble peaceably in the common areas with invited guests, subject to 718.106(4). If you are deprived of exercising your rights a guaranteed by law, you may bring action in the Court and the court will enjoin the enforcement of your rights.
Recent cases have held the Condo Association and its Board liable. A unit owner in some circumstances may apply to the Circuit Court to appoint a receiver to manage the affairs of the association, secure an injunction or declaratory Judgment against the Association or its Board Members to enforce the regulations in its Declaration of Covenant and the Florida law. Other legal theories of liability that may be pursued include negligence, breach of fiduciary duty, willful misconduct, breach of covenant, tortious interference, fraud, libel, slander, civil theft, trespass, theft, grand theft, civil RICO, self-dealing, restitution and criminal action if warranted. Criminal liability includes, misappropriation of funds, theft, embezzlement, illegal acceptance of kickbacks, theft, fraud, battery, assault, false imprisonment, criminal RICO, etc. If you as a unit owner prevail in a complaint against the Association and it Board, you may receive your attorney’s fees and costs and a deduction for your share that was assessed to the other Unit Owners.
Next month, I will continue my presentation of Florida Statutues 718, and begin my presentation of the Florida Administrative Code, Title 61, Chapter 61B-21, 61B-22, and 61B-23. I will also present some specific examples of violations and address some current and past cases filed in the Broward County and other Counties in relation to your Condominiums, and what the local Judges have been doing with these cases.
Many people are instrumental in seeking the necessary changes to the Condominium law and/or enforcement of the law. Call or E-mail them and let them know I sent you. These include Jan Bergemann , President of Cyber Citizens for Justice, Inc., who may be reached at jan@ccfj.net; Florida House of Representatives, Representative Ellyn Bogdanoff , who may be reached at (954) 767-9850, Representative Julio Robaina, District 17, who may be reached at (305) 442-6868; our local Ombudsman Danielle Carroll who may be reached at (954) 202-3234, or Dr. Grayson Walker, who may be reached at (954) 567-0520 or agwiii@comcast.net .
If you have any comments or questions, I may be reached at attorney@IngerGarcia.com or 954-894-9962.
