Condo association may assess owners to replenish operating account


Question: Our condo association incurred repairs for Hurricane Irma. Some of these were immediately incurred (landscape, cleanup, etc.) and others were deferred for a special assessment (major wall damage).

We paid out of operating funds $35,000 last year for immediate repairs. Can we reimburse the operating account this amount as part of the special assessment this year? — M.G.

Answer: Most condominiums and HOAs, based on their governing documents, have very broad authority to specially assess owners for any legitimate association expenses that fall outside the ordinary annual budget. That would include maintenance projects, replenishing the reserves, and also replenishing the operating account. Just make sure, in the notice sent to owners, that the described purposes of the assessment include the $35,000 reimbursement to the operating account.

Q: I’m on the board of a large subdivision with 727 homes, and sadly many homeowners fail to adequately maintain their property according to our covenants. Our management company writes numerous violations for trees that need trimming, lawns that need edging, driveways and sidewalks that need power-washing and even homes that need painting, but many people ignore these notices.

If an “out of compliance letter” is issued and ignored, and that notice turns to the maximum fine that is also ignored, does the board have the legal authority to go onto the property and remedy the situation (such as trimming the trees) and then send the bill for that service back to the homeowner? Or do the “no trespassing” laws also apply to the board? — T.F.

A: It really depends on the specific language contained in your declaration of covenants. Many homeowner’s association documents contain covenants that expressly authorize the association to enter onto an owner’s property in order to remedy a violation of the covenants or rules, and to pass that charge onto the owner. But, even if your covenants contain such language, doing so has significant risks. First, it can be dangerous to simply enter an owner’s property without permission, regardless of whether you have the legal authority to do so. The simple fact is that Florida is a very gun-friendly state, and you always have to assume that a homeowner may own a gun, and may choose to use it if a vendor or management company (or a director) starts mucking about with his or her yard or home without the owner’s express permission. I’m not saying it’s fair, or justified, but it’s a simple fact that always needs to be kept in mind. We would all agree that tree trimming is not more important than a person’s life.

Second, covenants and rules can be subject to interpretation. You may think it’s clear that an owner’s hedge is required to be trimmed to a certain length, but what if the owner has equitable enforcement defenses, such as waiver or selective enforcement? Or, what if the architectural controls were never properly promulgated? It’s tempting to want to use self-help to deal with these types of issues, but you need to balance the real risks against the cost and time commitment needed to pursue these violations in court.

If you don’t have any language in your covenants that would authorize the association to forcibly remediate the violation, absolutely don’t do it. There’s no authority to do so in the HOA Act, and you’d just be buying a mess of a lawsuit.

Q: Today a customer of mine was denied the purchase of a condo due to a felony he committed 25 years ago! He has good credit and good income. The charge was for possession of marijuana and cocaine. He says the drugs weren’t even his —he borrowed a car and didn’t know the drugs were inside. He is 59 years old and applied to a 55-plus community. Is there anything that can be done to help him get his dream condo? — E.B.

A: In 2015 the Supreme Court ruled that the Fair Housing Act can be violated by rules and procedures that tend to have an “adverse impact” on protected classes of people, even if those policies do not directly discriminate on a prohibited basis. HUD (at least, HUD prior to the current administration) has taken the position that prohibiting ownership or residency on the basis of criminal background is likely to adversely impact minorities, and therefore such rules are subject to heightened scrutiny, and may in fact violate the FHA. You should be able to find the memorandum online if you search for “HUD” “FHA” and “criminal history.” Based on my reading of HUD’s memorandum, rejecting an owner for a 25-year-old non-violent crime would be a stretch — but as far as I know this issue has yet to be tested in court.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster LLP. Email questions to condocolumn@gmail.com. Please include your hometown.



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