“Why Condo Assessments Are Not Always Equal Among Unit Owners” – News-Press
Q: I own a unit in a condominium and our assessments are not paid equally between the units. Rather, the amount each unit has to pay is based on the square footage of the unit. While there are different sized units, ultimately everyone has the same rights to use the condominium property and this seems unfair. Some owners wish to change the formula for the payment of assessments and make it equal for all units. How can we accomplish this goal? (C.H., via e-mail)
A: As a practical matter you probably cannot change the formula used for the allocation of common expenses between the units. Chapter 718, the Florida Condominium Act (the “Act”), specifies the manner in which liability for common expenses of the condominium is allocated. Specifically, Section 718.104(4)(g) of the Act states that the percentage or fractional shares of liability for common expenses of the condominium, for all residential units, must be the same as the undivided shares of ownership of the common elements and common surplus. The Act provides that the undivided share of ownership of the common elements and common surplus of the condominium, for residential condominiums created after April 1, 1992, must either be assigned based upon the total square footage of each residential unit in a uniform relationship to the total square footage of all residential units in the condominium or on an equal fractional basis.
Here, you state that the allocation of liability for common expenses is based on the square footage calculation, which is permitted by the Act. Additionally, allocation based on an equal fractional basis is also allowed; however, once the condominium is created with the allocation, any amendment changing the formula for allocation of common expenses would require approval of every unit owner.
Section 718.110(4) of the Act states that any amendment which changes the proportion or percentage by which the unit owner shares the common expenses of the condominium or owns the common surplus of the condominium requires the approval of all record owners in the condominium.
Therefore, once the condominium is created allocating the percentage by which unit owners share the common expenses and common surplus of the condominium in one manner, it is not feasible to amend the declaration of condominium to change such allocation.
Q: At a recent board meeting for my condominium association, one of the board members stated that they were abstaining from the vote. This resulted in a two (2) versus two (2) tie on the matter being considered. Is it proper for a board member to abstain when a vote is taken? (J.D., via e-mail)
A: Chapter 718, the Florida Condominium Act, contemplates a board member abstaining from a vote. Section 718.111(1)(b) of the Act states that a director who is present at a board meeting at which an action is taken is presumed to have consented to the action unless they vote against such action or abstain from voting. Further, the Act provides that a director who abstains from voting on any matter shall be presumed to have taken no position regarding the matter. In addition, there is no requirement that a board member assert a reason for abstaining when a vote is taken.
Chapter 720, the Florida Homeowners’ Association Act, similarly provides in Section 720.303(3) that the minutes of the board meeting must reflect the vote or abstention from voting for each director present at the meeting. As such, a director of a homeowners’ association similarly would have the ability to abstain from a matter.
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.
