Condo Q&A: Should Monthly Fees Drop If Amenities Are Closed?

Also: An HOA board decided to change trim colors for 108 community homes. Is that a material alteration – something members should vote on?

STUART, Fla. – Question: Our HOA board has decided to change the trim color of all 108 homes. The buildings are off white, and the trim has been a variation of light blue since they were built in 1990. They now want to paint turquoise, peach, yellow, lime green or gray. The CC&R’s state the HOA maintains the exterior of homes and paints every seven years. My argument is that this is a material alteration and should not be allowed. Help me if you can or lead me in the right direction. – N.D., Melbourne

Answer: Homeowner Associations are controlled by Chapter 720, Florida Statutes. Chapter 720 does not contain any requirement that material alterations be approved by a vote of the owners. You may be thinking of Chapter 718, Florida Statutes which governs condominiums. So, with no statutory requirement for owner approval of the color change, it would be a board decision unless your governing documents provide some type of restriction.

You should read your governing documents thoroughly to determine if there are any restrictions regarding color changes to the homes. If you were a condominium, then the Statute, 718.113, requires a 75% approval of the total voting interests to make the color change unless the Declaration of Condominium provides otherwise.

Question: During the recent lockdown, residents here and in numerous, perhaps all, Florida communities have been deprived of amenities. In our case, fees to support our two clubhouses and associated facilities (namely sports courts, pools, and gym with locker rooms), are itemized at approximately 31% of our total quarterly fees. The management company did retain a skeletal staff, and all usual expenses (e.g. water, electric, maintenance of two pools and two hot tubs, and more) had to have been drastically reduced. These amenities were closed for three months.

When I emailed the on-site manager about a proration of fees, the answer was NO! Our board of directors includes members of the builder’s company, the management company, and no residents as the association has not been turned over to residents yet. Is there a precedent or statute for proration of fees in this case? Would it be legal to withhold the 31% if I were to put it in an escrow account? – A.C., Port St. Lucie

Answer: The emergency powers statutes for condominiums, cooperative and homeowner associations give the board the authority to close or regulate access to the amenities in order to prevent the transmission of COVID-19. While this may seem unfair, you must realize that the board of directors has a fiduciary duty to prevent or limit liability. Closing the amenities is in the best interest of the overall health of the owners and reduces the legal exposure of the association.

The cost of maintaining and insuring the amenities does not stop just because they are closed. So, no you cannot legally withhold the payment of assessments because the amenities have been closed by the board in response to the unprecedented COVID-19 pandemic.

Another way to think about it is that you cannot withhold paying your taxes because some government services or buildings have been closed due to the pandemic. Putting your assessment payment in an escrow account would not stop the association from recording a lien against your unit for unpaid assessments, so I would not recommend that course of action unless you have a court order allowing you to do it.

Question: The time being in isolation has given me way too much time to ponder items of little to no importance. This being one: My wife and I recently bought a unit in a 26-floor condo building on the Gulf Coast in Southwest Florida. We purchased a “unit” insurance policy covering personal property ($21,000), loss of use ($8,400) and dwelling ($116,000).

My question to you is: If a hurricane should damage the exterior of the building, the COA has a policy covering this damage, but if the building is destroyed requiring a complete rebuild, am I covered for the value ($325,000) of our individual unit under the COA policy? – N.P., SWFL

Answer: Section 718.111(11) Florida Statutes covers a condominium associations insurance requirement. It requires the Association to insure the condominium building for 100% of its replacement cost based on an appraisal of the building conducted no less often than every three years.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

© 2020 Journal Media Group

Information provided by Florida Realtors.  Click here to see the original article.

Reprinted with permission Florida Realtors. All rights reserved.