Q: Our condominium’s documents and rules and regulations specifically state what owners may use as decorations in the limited common areas (specifically the covered walkways in front of each unit.) We have bicycles, plants, chairs, beach stuff, etc. left in these areas. We do provide bike racks. Our letters to owners seem to fall on deaf ears. What do we do next?
– B.J., Rotonda West
A: That type of situation can create not only visual clutter but very real safety concerns.
I frequently hear complaints from board representatives that owners ignore the violation letters that they send, and that, as a result, disputes drag on for months, sometimes even for years.
My first step is to ask what the board did next when its demands were ignored. Often, the answer I get is that the board sent more letters or became frustrated at the lack of compliance.
Some of this can be attributed to human nature.
If a board sends a violation letter to an owner giving a deadline for compliance, some will promptly comply. Others, feeling within their rights, ignore the demand, and take the stance which can be best described as, “What are you going to do about it?”
The problem is that if the board fails to follow through, the owner feels empowered and thumbs his or her nose at the board’s authority.
In your particular case, these items that are accumulating in the front of units could create life-safety issues (blocking unit access in the case of emergencies) and should not be ignored. Remedies exist, which may include fines, suspension of certain common element use rights, and depending on the actual legal status of the property in question, self-help remedies, including the removal by the association of the items.
I would recommend referring the issue to legal counsel who can review your documents, rules and your association’s history of enforcement.
Don’t just call out the fire inspector, unless the association is prepared to be cited for that and other items in the association’s control that may not pass strict scrutiny.
BOARD SHIRKS OBLIGATION
Q: Recently, I learned that our villa (condo) association has taken the position that they don’t have the money to paint everyone’s villa, so they are encouraging individual owners to paint their units themselves, using strict guidelines that they have established.
–In addition, an owner must pay for all the materials and warrant the labor and materials themselves. Our declaration of condominium states that all exterior building maintenance is the association’s responsibility. How can this crazy policy of theirs be stopped? - E.S., via email
A: That does not sound right.
For a condominium, maintenance responsibilities are spelled out in the recorded declaration of condominium. Those responsibilities may be unclear in a badly drafted set of documents, but what is clear is that a board does not usually have a unilateral right to change them. A board cannot just throw up its hands, claiming a lack of funds, and abdicate its responsibilities to the members.
Think about it. An association claims to not have money for painting and attempts to have individual owners assume the obligation. Can’t the association simply assess the owners for the cost? Those same owners that the association believes have the money to pay for it, money which the association “cannot” raise? That makes no sense.
Consider sending the board a certified letter asking for an explanation of the new policy. The board has a legal obligation to answer.
NO LONGER NEEDED
Q: In the past several years, our condo association board rightfully gave permission to two owners to install an external chairlift to their second-floor units because of disabilities. At the time, the board was told that the association was responsible for liability insurance on these lifts, which was added to our coverage.
Unfortunately, both owners that had need of these lifts are now deceased. Both surviving spouses, while not handicapped or in need of the lifts for access to their units, have decided to keep the lifts in place. Because the occupants in these units do not require these lifts, does the association still have to maintain liability insurance? Could we require the owners to reimburse the association for future liability insurance costs?
– Name withheld by request
A: It appears that your association properly made “reasonable accommodations” for the recognized disabilities of residents under applicable fair housing laws.
In the simplest terms, a condominium association may be legally required to allow residents to make reasonable accommodations to the common elements at their own expense so that those owners can access and occupy their units. The modifications must be properly permitted and not block access to other units or create any safety issues.
The lifts that you describe constitute major modifications to the common elements. In granting the approval, the board should have had a written agreement addressing the construction of the modifications, insurance and indemnification provisions, as well as provisions for removal of the modifications when the accommodation was no longer required.
If no such agreement exists, it will be necessary to consult with counsel to see what rights and remedies the association now has.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. She concentrates her practice on community associations and real estate. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
