Florida Condo Law 101: FAQ’s Answered

Florida Condo Associations Explained

Florida condo associations are non-profit corporations that are governed by the Florida Condominium Act. The Act provides for a general scheme of governance for most condominiums and condominium associations. Much of this scheme is optional. In other words, if something is not addressed in the declaration (the documents which give rise to the association), the declaration is essentially silent on the issue. This results in a great deal of discretion afforded to boards and managers. Other provisions in the Act are mandatory. For instance, notice requirements must be followed, regardless of your declaration.
Condominiums are created in Florida when the property is voluntarily submitted to the Act by the developer. The declaration is filed with the Clerk of Courts pursuant to Section 718.104, Florida Statutes. A condominium cannot exist without a declaration. By submitting property to the Act, the developer creates an association . This association is charged with the responsibilities set forth in the Act and those responsibilities outlined in the declaration. In fact, the declaration provides the governing documents for the association. It would be a violation of the Act for the association to adopt by-laws which are inconsistent with the declaration. Typically, in many cases, the declaration and the by-laws are the same.
The operation of the association requires the cooperation of all unit owners. Boards and managers must understand their respective roles. Associations typically have a board of directors comprised of resident unit owners. These directors can be volunteers or they can be compensated. Regardless of whether you are a volunteer or a compensated director, you have a fiduciary duty to the association, which means that you must act in the best interests of the association. By meeting on a regular basis, the board and its manager(s) can adequately address issues which arise, creating an effective association.

Common Owner Obligations in a Condo

Condo Ownership Responsibilities in Florida
In addition to the common elements, condo owners own "units" inside the condo association. Even though the condo owners own their units, they are not solely responsible for their upkeep. Just like the maintenance and repair of the common elements, the association is also responsible for maintaining the condition of the unit, including the plumbing and electrical connections contained within the walls, as well as the utility hook ups. Under FL Condo Real Property Laws § 718.113(1), condo owners have to maintain and repair the parts of their unit for which they are responsible. They also have a right to "inspect, copy, and obtain at reasonable times and places on reasonable notice, current copies of any of the records required to be maintained by this chapter and chapter 720." Condo owners incur other responsibilities, including the payment of common fees and assessments, maintenance of the common elements, and following any rules or regulations established in the bylaws or rules and regulations of the condo association.

Legal Remedy for Condo Conflicts

Disputes amongst condominium associations and unit owners can be found in every association. Whether related to an owner’s failure to follow community rules or enforcement of payment obligations, disputes arise. Disputes can also arise between unit owners, whether at the remedy of their association or another unit owner. Further it is important to note that disputes can either be addressed by governing documents, Florida Statute (namely Chapters 718 and 720), your insurance provider, or other parties that may have an interest in the facts and circumstances giving rise to a dispute. There are two common types of condominium disputes between owners and associations: As to owner/owner disputes, relevant documents should be reviewed as they may contain binding and conclusive provisions pertaining to resolution of your dispute. Be reminded that governing documents can provide detailed rules on fines, mediation, charges for damages, responsibilities of the parties, and any limitations on recovery. Pursuant to Chapter 718.303(3), F.S., your condominium association may provide in its governing documents that: (a) A fine or a suspension may not be a penalty. (b) A fine or suspension may be levied daily until flexible limits are met. (c) The Association need only find that the violation exists before imposing sanctions. (d) Sanctions may be elevated based on past violations or other factors. (e) Alternative sanctions such as community service may be offered at the option of the association or at the request of the respondent. (f) Past violations are deemed to be repeated violations. (g) An aggrieved party may be awarded attorneys’ fees who prevails in an action for the breach of governing documents. These provisions can be customized and if your governing documents are silent on any of the above items, the law provides no guidance or limitation on the association as to how to respond to a violation of the governing documents. Practically speaking, this means an at-will discretion is provided to the Association to resolve the matter. In my experience, the Association tends to exercise discretion in favor of the community and/or general membership as to units with violations. Courts will only overturn a reasonable exercise of discretion by an association. We all know that disputes happen in even the best communities – remember that the facts and circumstances providing rise to the dispute should be viewed in light of any applicable governing document provisions, and Chapter 718, F.S.

Florida Condo Election Process

Condominium associations are often required to hold elections for their condo board of directors on a regular basis. Florida law requires only that elections occur every three years for boards with 10 members or less (except for those boards comprised of solely unit owner volunteers), and every year thereafter. Associations with 11 or more directors are required to hold annual elections. New elections are not required for associations that are made up of solely unit owner volunteers. Elections require adequate notice to the owners and, if things go smoothly, votes cast by a majority of the unit owners on the election date. If the directors are elected and certified at the organizational meeting, then the condo board is good for another few years. Or, they aren’t. Under Florida law, an election in which at least 20% of the eligible owners decide to participate determines the business of the condo association, including directors’ elections. Because of this high participation requirement, condo boards may sometimes find themselves in a less than ideal position if not enough owners participate to meet the 20% threshold. If you consider that high of a participation for your condo’s last election, then you probably should not consider yourself an anomaly. 20% is a relatively low number of voters and generally results from low levels of interest in the candidates or issues at hand. To address these and other obstacles to the election process, Florida law prescribes several options available to associations. Failure to engage in one of these options is violation of condo law. Dismissal of candidates If you are an owner running for a director position, you must have a participating majority of no less than 20% of the unit owners at the election in order to be properly elected or re-elected. If not, your candidacy is subject to dismissal. The association can dismiss you with a simple vote of the unit owners present at the election. However, there is a catch. The 20% figure must be from all of the owners in attendance at the election. A quorum of owners, of the units present and voting, must exist for purposes of dismissing a candidate. Let’s say that you, a candidate for condo board director, show up to the association’s annual meeting with copies of your resume in hand, ready to present your platform of leadership to the rest of the owners. Turns out, 4 out of the 5 people in attendance are there to attend a garage sale being hosted next door. When the time comes for Nominations from the Floor, the other owners at the annual meeting cast their votes, making you a candidate for condo board director. But, only 20% of the owners participate. Since only a quorum of the attendees is filled with serious mind of the association’s future – a garage sale is only for the serious – you know you’ve got a good chance of being dismissed from the election. Who needs democracy when you have a garage sale? Consider recalls If you’re not in danger of being dismissed from your coveted place on the condo board of directors, someone else very well might be. If an owner is extremely unhappy with the condo board’s decisions, especially repeated decisions that seems to violate Florida law or the condo documents, that owner has the option of submitting a petition for recall of the board. The recall petition must be signed by 15% of the owners of all the condo units in order for it to be considered. For example, your association has been paying outside management several thousand dollars a year and you see no obvious increase in your property value from the expense. You are nominated for the condo board of directors, you review the condo documents, and it appears that the association doesn’t need an outside management company and could easily be run by volunteer unit owner directors. Time for a recall!

Condo Fee and Assessment Collections

As a buyer carefully considers not only the purchase price of a Florida condominium, but also what expenses will quickly mount up (e.g., maintenance fees monthly, quarterly or annually), be sure to also scrutinize the "budget," which sets forth an estimate of the cost of those monthly or quarterly condominium fees, along with an estimated budget for contingencies, i.e. anticipated repairs and/or special projects. If a condominium association finds that an expense was underestimated, historically, the association has been able to just increase the fees, sometimes on short notice . However, where a timeline for the repair and cost were set out in the condo documents and are well-established, it may be difficult for a condominium association to increase cost estimates without going through the proceeding established by the Florida Condominium Act for increasing association assessments, under Chapter 718 of the Florida Statutes. Often a fee increase can apply to all owners of record, even those who do not use the same facilities, so if the association’s budget does not itemize together the costs of specific facilities or management areas, the association and every owner cannot realistically determine their pro-rate liability for facility repair, maintenance, or replacement often assessed on a monthly or weekly basis.

Condo Bylaws and Amendments

Beyond the condominium declaration and articles of incorporation, bylaws are one of the most crucial documents relevant to the operation of condominiums in Florida. Bylaws govern the day-to-day operations of the association by establishing a framework for how the business of the community is to be handled. They set forth requirements for board composition and elections as well as protocols for conducting association meetings and quorum requirements for unit owners. Bylaws also include provisions specific to the business of the condominium association including financial protocols, assessment requirements, and procedures for filing liens. Bylaws are created through the same process as the declaration, which means that if they have been properly adopted, they are recorded in the public records in the same manner as declarations.
Amending the Bylaws
Under Florida law, bylaws may be amended according to the procedures for amending the declaration. For example, an amendment to the declaration may also contain an amendment to the bylaws. A condominium’s documents may also provide provisions addressing amendments to the bylaws outside of a declaration amendment. To the extent there are inconsistencies in the procedures outlined for amendment to the declaration and amendment to the bylaws, the stricter procedure will apply. Some condominiums require 100% approval of the membership to amend the bylaws while others require more than 50%. Most bylaws also provide that amendments must be recorded in the public records, and some even require condominiums to be de-annexed if an amendment is not recorded (in effect, dissolving the condominium). Since bylaws provide members with the framework for how the association’s business is to be handled, it follows that amendments to the bylaws will have great impacts on residents’ rights. If amendments impose stricter requirements on the board of directors or impose more onerous restrictions on the members, all unit owners need to know how to protect their right to vote on bylaw amendments.

Florida Condo Law – Legal Protections

As a general rule, Florida provides stronger protections for owners of condos in comparison to those of homeowners. For example, condominium associations are required to maintain insurance on all of the buildings within the association’s jurisdiction. This is so that members are not exposed to financial risk following a hurricane or other disaster.
The most applicable law protecting owners of condos is the Florida Condominium Act. The Act’s provisions cover everything from how potential board members are elected and what disclosures boards are required to make, to unit owner rights and the circumstances under which they may be suspended.
The Act is designed to protect the rights of unit owners while also providing structure and clarity for condo associations. For example , the law lists 16 enumerated rights unit owners have with regard to their property and their right to participate in the legislative process of the associations.
Violating both the state statutes and the specific condominium documents can result in legal penalties, including lawsuits requiring injunctive relief, monetary damages, costs, and even attorney’s fees.
Here are some of the legal protections available to Florida condo owners:
Florida law comes down hard on boards or other individuals in a position of trust who have too much access to unit owners’ funds, but it also provides unit owners with legal recourse to potentially recover any damages they suffer as a result of such acts.