“Board Discretion Over Landscaping Contracts” – News-Press
Q: I am on the board of my condominium association and we were required to get a structural integrity reserve study last year, and we did. We are now faced with unanticipated structural repairs to the building. Florida statutes say that we have to have our structural integrity reserve study completed every 10 years. Is there any obligation for us to update it now? (P.S., via e-mail)
A: Chapter 718, Florida Statutes (the Florida Condominium Act), also provides that an association may update its structural integrity reserve study to reflect any changes to the useful life of the reserve items after such items are repaired or replaced and the effect such repair or replacement will have on the reserve funding schedule.
Accordingly, you should check with your Association’s reserve study professional, which must be a Florida licensed engineer or architect, certified reserve study specialist, or professional reserve analyst, as to whether an update is recommended.
Reserve studies can be updated with or without a site visit, but the Community Associations Institute’s Reserve Study Standards recommend that an update with a site visit is performed at least every three years, and again this is an issue the association should discuss with its reserve study professionals.
Please note, Florida’s Condominium Act does require that associations update their structural integrity reserve study in certain situations which include:
- If the structural integrity reserve study is performed before the association has approved a special assessment or secured a line of credit or a loan, then the structural integrity reserve study must be updated to reflect the funding method selected by the association and its effect on the reserve funding schedule, including any anticipated change in the amount of regular assessments;
- If the reserve funding from regular assessments, special assessments, lines of credit, or loans does not align with the funding plan from the most recent version of the structural integrity reserve study, the association must obtain an updated structural integrity reserve study before adopting its budget; and
- If reserve fund contributions are temporarily paused for the purpose of funding repairs recommended by the milestone inspection, a structural integrity reserve study must be performed before the continuation of reserve contributions.
Q: Recently the board of directors of my homeowners’ association terminated the landscaping company that has served the community and hired a new company. This was a significant change and has been disruptive. Does this type of change require membership approval? (G.R., via e-mail)
A: Typically, no. A change in contractor by the association does not require a vote of the members and would be within the discretion of the board of directors. While members have the right to vote on certain decisions, most day-to-day operational issues, such as the hiring or terminating contractors, are within the discretion of the board of directors.
Typically, members vote on the election of board members, amendments to the governing documents, other certain budget and reserve funding issues and possibly certain types of changes or alterations to the common property within the community, depending on the specific terms of the governing documents. However, the board of directors typically has the authority to make all other decisions on behalf of the association, including, but not limited to, the hiring and termination of contractors. As such, barring some unusual language in your governing documents, the board would have the discretion to change landscaping companies.
However, before the association seeks to terminate any contract, the association should review the contract regarding its termination rights. Some contracts require specific notice before termination, or that the notice must be provided at specific times. However, subject to the process of termination in the contract, the board of directors typically would have the authority to terminate a landscape company contract and enter into a contract with a new landscaper.
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.
