Q: What rights does a condominium association have when dealing with an abandoned unit, and under what circumstances can it go into the unit? (K.Y., via e-mail)
A: Section 718.111(5)(b) of the Florida Condominium Act provides that even if the declaration of condominium or other recorded condominium documents do not explicitly provide such authority, the association’s board has the discretion to enter an abandoned unit for the following reasons: (1) to inspect the unit and adjoining common areas; (2) to make repairs to the unit or common elements serving the unit, if needed; (3) to address mold or deterioration within the unit; (4) to restore utilities in the unit; or (5) to otherwise maintain, preserve, or protect the unit and adjoining common areas.
A unit is considered “abandoned” if: (1) it is involved in a foreclosure action, and no tenant has lived there for at least four continuous weeks without prior written notice to the association; or (2) no tenant has lived in the unit for two consecutive months without prior written notice to the association, and the association is unable to contact the owner or determine their whereabouts after a reasonable inquiry.
In non-emergency situations, the association must wait at least two days after mailing or hand-delivering a notice of intent to enter the unit to the owner at the address listed in the association’s records. If the owner has consented to electronic notices, the notice may be sent via electronic transmission.
Any expenses the association incurs while entering and maintaining an abandoned unit can be charged to the unit owner and enforced as an assessment. The association can use its lien authority, if any, to collect these costs.
Additionally, the association may ask a court to appoint a receiver to lease out the abandoned unit. The rental income can be used to offset costs and expenses, including receivership costs, unpaid assessments, interest, late fees, legal fees, and other related expenses.
Q: Is a homeowners’ association legally required to appoint a committee to approve fines, and what can be done if the board refuses to do so? (S.R., via e-mail)
A: Section 720.305(2)(b) of the Florida Homeowners’ Association Act states that fines and use right suspensions can only be imposed if the association meets certain requirements, including giving the parcel owner at least 14 days’ written notice and holding a hearing before a committee consisting of at least three members who are not officers, directors, or employees of the association. Adhering to these requirements is mandatory before any fine or suspension can be imposed.
There is no legal obligation for an association to appoint a “compliance committee,” but it would not be able to impose fines or suspensions without one.
Q: I am worried about some construction work happening in our community. There is an owner fixing up an old deck that sticks out from their unit. I think the original deck might not have been allowed by the association, and I don’t know if they had the right permits back then. Now, they seem to be doing repairs without permits too, and I haven’t seen the association do anything about it. Can the association make the owner take down the deck if it wasn’t allowed or permitted? (R.H., via e-mail)
A: This seems like a sticky and probably very fact-specific situation. Assuming your association’s governing documents grant it the authority to regulate the construction of decks or other improvements within the community, any attempt to oppose such construction may face a defense by the owner based on the statute of limitations.
In general, the statute of limitations for enforcement of restrictive covenants of a community association is 5 years. However, even assuming the deck was built over 5 years ago, its repair or renovation may also require association approval and constitute a new and separate violation.
If the deck’s repair is being done without a permit, and a permit is indeed required, the association or any owner can report the issue to county code enforcement.
A proper diagnosis of this case would require detailed review of both the history of the matter and the provisions of the governing documents by a competent attorney.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.