Special Assessment Leftover Funds Must Be Returned or Credited To Account

Special Assessment Leftover Funds Must Be Returned or Credited To Account

Q: Our condominium association board levied a special assessment for Hurricane Irma damage. Our insurance claim settled for more than we expected, resulting in an excess of funds due to the special assessment. What happens to this leftover money? (S.S., via e-mail)

A: Sections 718.116(10) of the Florida Condominium Act provides that funds collected from a special assessment can only be used for the specific purposes for which the assessment was levied. Leftover funds are considered “common surplus” and may, at the discretion of the board, either be returned to the unit owners or applied as a credit toward future assessments.

Q: I am on the board of my condominium association. Several of the directors recently had a “workshop” session to understand the details of a major construction project that is coming up. The workshop was intended to be informational only. No votes were taken. Were we required to post notice of the workshop? (S.C., via e-mail)

A: The answer to your question depends on whether a quorum of the board was present at this gathering. While the law does not specifically address “workshops,” if there was a quorum of the board present, it was a “meeting” if association business was “conducted.”

It is widely accepted that votes need not be taken for a meeting to occur. In my opinion, the activity you describe involve the conduct of association business. On the other hand, if the majority of your directors attend an educational seminar, this is not a meeting as you are not addressing the business of your association.

Therefore, assuming a quorum of the board was present at this event, notice and an agenda should have been posted at least 48 hours in advance on the condominium property, and all unit owners should have been given the right to attend and speak, subject to any reasonable rules the board may have adopted governing unit owner statements at board meetings.

Q: My wife and I co-own a condominium unit. At the last election, we both ran for the board and were elected. Now, some of the directors say we both cannot serve at the same time, and have demanded that we choose which one of us will hold the seat. Is there a precedent on this? (J.O., via e-mail).

A: Section 718.112(2)(d)2 of the Florida Condominium Act states that in a residential condominium association of more than 10 units, co-owners of a unit may not serve as members of the board of directors at the same time, unless they own more than one unit or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.

Therefore, if your condominium consists of more than 10 units, if you and your wife only own one unit, and if there was a contested election, you both cannot serve on the board at the same time. Whichever of you received the greater number of votes would be the person who was actually elected, so you can’t simply choose between you. The person who received the next highest number of votes but was not considered elected, would take one of your seats.

It is also worthwhile to note that the law requires challenges to elections to be made within 60 days through an arbitration proceeding with a state regulatory agency. If the election was more than 60 days ago, I am not sure how that would play out since seating both you and your wife was what lawyers call “void ab initio,” meaning null and void from the start.

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.