“Project Delay Causing Frustration” – News-Press
Q: My HOA collected 300 dollars to build a community dock that was voted on by the owners. There are apparently issues getting a permit, but the information is vague. How long can an association hold homeowners’ money? I feel there is no transparency from the board on this. (D.M., via e-mail)
A: The law does not establish a time limit for how long a homeowners’ association can hold the proceeds of a special assessment. Every action of the board is required to be taken in good faith and with reasonable diligence, but that will vary widely with circumstances.
The Florida Condominium Act limits the use of special assessment proceeds to the purpose for which the assessment was collected. Alternatively, the money must be returned to the owners or credited against future assessments. The Florida Homeowners’ Association Act contains no similar provision, your governing documents may or may not regulate the issue.
My advice would be that you initiate a petition to the board. If 20 percent of the owners sign the petition, the board is obligated to put the item on the agenda for a board meeting, where the owners can ask for a status report to be given.
Also, the permitting and contract paperwork regarding the project is part of the “official records” of the association. Every owner has the right to inspect the official records of the association. The association must make them available for inspection within 10 working days of receipt of your written request.
Q: Our HOA board members have set up e-mail accounts that are structured to appear “official.” The syntax is: <title>.<hoaname>@gmail.com; (e.g., vicepresident.hoaname@gmail.com). While I don’t suspect nefarious intent, it seems like poor judgment. Would these personal, albeit official sounding names be subject to a records request? (R.G., via e-mail)
A: I often see e-mail accounts like the ones you describe. I do not see any basis for being concerned about the use creation of such accounts. Presumably, one of the primary reasons for setting up these accounts is so that directors can use e-mail communications for association business without also having information affiliated with their personal affairs in the same account.
I would assume that the e-mail address stays with the seat/position and when a new officer or director is elected to that position, the e-mail address is made available to that person for their use.
While the law is unsettled and heavily debated as to whether e-mails in the possession of directors on their personal devices or in their personal e-mail accounts are “official records,” I think it is more likely than not that a court would find that e-mails kept in accounts of this nature would be part of the official records of the association. Especially if those accounts are managed through the association or its management company.
Q: What are the legal rules for changing how assessments are shared from equal to respective unit square footage? (T.R., via e-mail)
A: Section 718.104(4)(f) of the Florida Condominium Act states that for condominiums created after April 1, 1992, assessments can only be shared in one of two ways, equally or based on relative unit/apartment square footage.
Additionally, Section 718.110(4) of the Act states that, unless otherwise provided in the declaration of condominium as originally recorded (which is rare), no amendment may change the proportion or percentage by which the unit owners share the assessments unless one hundred percent of all unit owners approve and join in the amendment. Further, all holders of liens, including mortgages, must approve the amendment.
Therefore, in most cases, such amendments are impossible as a practical matter and very complicated and expensive to enact even if all of the owners agree.
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.
