Q: I own a unit in a condominium association that is part of a larger community made up of a number of other condominium associations and homeowners’ associations, all of which are governed by a master association. This raises questions about which documents control. For example, the master association’s documents state that leases must be at least 30 days or 1 calendar month in length, while our condominium documents require 3-month minimum rentals. As such, some confusion has arisen as to which documents control? (G.M., via e-mail)
A: Your community’s set-up, where there are multiple “layers” of associations governing the various parcels, is not unusual. Typically, there are recorded “master association” documents that govern the entire community. Then, each individual “sub-association,” whether it is a homeowners’ association governed by Chapter 720 of the Florida Statutes, or a condominium association governed by Chapter 718 of the Florida Statutes, has its own set of recorded governing documents.
Generally, the documents for the master association are the superior documents because they would have been recorded in the public records before the sub-association documents. Therefore, since they are “first in time,” they are “first in right.”
The master association documents will generally establish the minimum regulations for the community and would not prevent the individual sub-associations from adopting more restrictive rules for their individual association. However, such associations could not adopt more lenient restrictions, or if they did, any owner following the more lenient sub-association restriction would still be in violation of the master documents.
Using your example, if the master association’s documents require minimum leases of 30 days, the sub-associations can require longer minimum lease terms for their individual community but could not permit shorter lease terms. Each sub-association is governed by its own documents and there is usually no requirement that those documents be consistent throughout the community. One purpose of master association documents is to set minimum standards for the entire community.
Q: I was notified that I was removed as a candidate for our upcoming election because of a late assessment payment. I was not aware I was late, as I believed it was set for auto pay. I received no notice online or calls informing me I was late. Does my outstanding balance preclude me from running? (R.S., via e-mail)
A: Probably.
Section 720.306(9)(b) of the Florida Homeowners’ Association Act provides that a person who is delinquent in the payment of any fee, fine, or other monetary obligation to the association on the day that he or she could last nominate himself or herself or be nominated for the board, may not seek election to the board and his or her name may not be listed on the ballot.
Section 718.112(2)(d)2 of the Florida Condominium Association Act provides that a person who is delinquent in the payment of any assessment due to the condominium association at the time of the deadline for submitting a notice of intent (at least 40 days before the scheduled election) to run, is not eligible to be a candidate for board membership and may not be listed on the ballot or serve on the board.
What is “delinquent,” is a fact specific inquiry. Many governing documents provide that assessments not paid by a certain date from the due date are delinquent. 10 days, 15 days, and 30 days are the most common standards that I see. The statute provides that if the governing documents do not specify a delinquency date, the assessment payment is presumed to be delinquent the day after the due date.
The association must send you a courtesy delinquency notice giving you at least 30 days before the account can be referred to an attorney for collection. Interest and late fees, if authorized by the governing documents, may still be added to the account balance at this stage. However, the failure of the association to send this notice does not change the fact of an account being delinquent.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.