Becker & Poliakoff

“Estoppel Charges Adjusted for Inflation” – News-Press

“Estoppel Charges Adjusted for Inflation” – News-Press

Q: I recently requested an estoppel certificate from our homeowners’ association to confirm the dues and fees associated with my property in connection with my selling the home. When I received the bill, the amount charged was higher than the cap mentioned in the Florida Homeowners’ Association Act. Can they legally charge more than what is stipulated by Florida law? (S.H., via e-mail)

A: As discussed in my April 7, 2024, column, Section 718.116(8) of the Florida Condominium Act, Section 719.108(6) of the Florida Cooperative Act, and Section 720.30851 of the Florida Homeowners’ Association Act all govern estoppel certificates.

I failed to mention in that column that each statute includes a provision allowing the Department of Business and Professional Regulation (“DBPR”) to adjust fees every five years based on the Consumer Price Index. In 2022, the DBPR increased the fees to $299.00 for preparing an estoppel certificate, $119.00 for expedited requests, and $179.00 for delinquency fees. The previous amounts, and those listed in the statute, are $250.00, $100.00, and $150.00, respectively.

This might explain the reason for the higher fee you were charged. The next fee adjustment from the DBPR is expected in 2027. Given inflation trends since the last update, it is likely to be further increased.

Q: We are a small condominium of 34 units. Our prospectus clearly states that we have an unheated pool. A board member is pushing to install a heater. Is this considered a material alteration, and does it require a 75% vote of all residents? (M.F., via e-mail)

A: The landmark Florida appellate case defining “material alterations and substantial additions” is a 1971 decision called Sterling Village Condominium Association, Inc. v. Breitenbach.

In that case, the court considered whether a unit owner’s modification of lanai screen enclosures by the addition of glass jalousie windows was a material alteration. Establishing the legal standard still used more than a half century later, the Sterling Village court held that the term means any change that “palpably or perceptively varies or changes the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”

As your original condominium design had an unheated pool, adding a pool heater now would be considered a material alteration. Section 718.113(2)(a) of the Florida Condominium Act requires approval of 75 percent of the total voting interests of the association for material alterations or substantial additions unless the declaration provides otherwise. Review of the current declaration by legal counsel would be required for a proper legal opinion.

Q:  I recently took over as president of our condo association in Florida. I posted a notice to all unit owners that there would be an informal gathering so that everyone could meet the newly elected directors, the new officers, and sign up for committees that they would be interested in joining. I was told by the manager that according to sunshine laws, if a quorum of the board members are present it becomes an official meeting and agenda and a formal letter has to be posted. I am trying to open this up to all owners and don’t understand what the problem is. I am interested in your opinion on this. (N.W., via e-mail)

A: It doesn’t sound like you did anything wrong and your intentions are certainly proper, if not laudable.

Any “gathering of a quorum” of board members to “conduct association business” is considered a “meeting,” so the event you describe was a “board meeting.”

Notice of board meetings must identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting, and must set forth the date, time, and place of the meeting.

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.