Inspecting Your Condo Records: What are the Official Records that a Florida Condo Association Must Maintain?

Posted By on October 28, 2014

Every Florida Condominium Association is required by Florida law to maintain and keep certain documents as part of its official records. The Condo Association has no option; it would be a violation of the Florida Condominium Act for specific documents not to be kept and preserved and ready for inspection by the unit owners.

What Records Need to be Kept By the Condo Association?

Pursuant to Florida Statute 718.111(12)(a), the following documents are considered to be the “official records” of each Florida condominium, and its association has the legal responsibility to act as custodian of these documents:

1. A copy of the plans, permits, warranties, and other items provided by the developer pursuant to s. 718.301(4).
2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.
3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.
4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.
5. A copy of the current rules of the association.
6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners, which minutes must be retained for at least 7 years.
7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the electronic mailing addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with subparagraph (c)5. However, the association is not liable for an inadvertent disclosure of the electronic mail address or facsimile number for receiving electronic transmission of notices.
8. All current insurance policies of the association and condominiums operated by the association.
9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.
10. Bills of sale or transfer for all property owned by the association.
11. Accounting records for the association and separate accounting records for each condominium that the association operates. All accounting records must be maintained for at least 7 years. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:
a. Accurate, itemized, and detailed records of all receipts and expenditures.
b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.
c. All audits, reviews, accounting statements, and financial reports of the association or condominium.
d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association.
12. Ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).
13. All rental records if the association is acting as agent for the rental of condominium units.
14. A copy of the current question and answer sheet as described in s. 718.504.
15. All other records of the association not specifically included in the foregoing which are related to the operation of the association.

Courts are Strict About Keeping These Official Records

It’s important for the Condominium Association not only to keep the official documents as defined by law, but to keep these records in their proper format. The Condo Association is held to a high legal standard here, and these “official records” need to be properly respected by the association.

For example, in the case of Hobbs v. Weinkauf, the Condominium Association was held to have violated the Florida Condominium Act not because they failed to keep records, but because they keep summary accounting records for each of the condo units instead of a complete and full accounting record for each individual unit.

Inspecting The Official Documents of the Condo Association

Pursuant to Florida Statute 718.111 (12)(b),(c), the Condominium’s Records have to be open and available for review by condo unit owners; however, that right to look at the Condo Documents is limited to a reasonable time and place as defined in the law.

1. The members of the Condominium Association (i.e., all of the unit owners) can look at the documents and make copies of them at their own expense; and

2. The Condo Association is free to adopt reasonable rules on things like frequency, time, location, notice, and manner of record inspections and copying.

Failure to Allow Inspection of the Condo Association Official Records

If the Condominium Association fails to provide access to the condominium records, then damages can be assessed against the Association under Florida Statute 718.111(12). The law sets minimum damages here as $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. Attorneys’ fees are also available under the statute for those who are forced to expend legal fees after being “… directly or indirectly, knowingly denied access to the records.”

Failure under the statute to provide the Official Records is established (though it can be rebutted in specific cases by the Condo Association) if it can be shown that, after a written request was presented to the association, 10 working days (you cannot count weekends or legal holidays) has passed without access to the records being provided.

Need Help Getting Access to Your Condo Association Records?

If you are unable to get access to your Florida Condominium’s official records or your Condominium Association has violated its legal duties regarding care and control of the condo documents, it may be necessary to enlist the help of a Florida condo lawyer to force the association to play by the rules.   Most real estate lawyers who practice this area of law will be happy to help.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Common Lawsuits Against Florida Condominium Boards

Posted By on October 23, 2014

Learn About (jump to these sections):

Living near the beach is a dream of many Americans. Many have achieved this goal by owning a condominium in South Florida,  instead of a single family residence, where windows offer oceanfront views and doorways offer a chance to walk to a sandy beach.
  

 

In fact, because so many chose a condominium as a preferred type of home ownership in Florida has meant that our state legislature has had to address countless unique legal issues related to this type of real estate ownership. Today, unlike some states (like Massachusetts where there is scant condo law), Florida has developed a substantive body of law written by lawmakers and the courts dealing specifically with condos and condominium disputes. This includes the Florida Condominium Act (Chapter 718 of the Florida Statutes)[1] as well as numerous court opinions and agency rulings by the Florida Division of Condominiums, Timeshares and Mobile Homes. [2]

Condominium Ownership is Different Than Owning a Single Family Home

Living the condo life is different from living in a suburban community, a rural setting, or even other kinds of communal living options. Condo owners must share not only ownership with their fellow condo owners in their particular condominium, but these unit owners must deal with those placed in charge of overseeing the upkeep and welfare of the condominium as a whole: i.e., the condominium association’s board of directors, the infamous “Condo Board.”

Each condo unit owner is a member of the Condominium Association. [3] The Condominium Association acts through its board of directors, the Condo Board. The condominium can be self-managed, or the Condo Association can hire a third party manager to manage things. If there are over 10 units or an annual budget exceeding $100,000, then Florida law requires that this manager be licensed by the State of Florida as a “Community Association Manager”. [4]

The power of the Condo Board is vast. For instance, the Condo Board has the right to enter the individual condo units of every condo on the property, a threat to privacy that someone living in a single family home will not face. Under Florida Statute 718.111(5) [5], Florida condo unit owners must provide their condominium association with access to their condo unit in case entry is needed in an emergency (say, a burst pipe). The unit owners must trust the Condo Board and the management they have put in place over the condominium community not to take advantage of that ability to access individual homes.

Imagine how the power granted by this statute [6] might be misused by a nosy or unscrupulous condo manager:

“The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.”

This is just one example of how different life can be for a condo unit owner and another home owner who lives within walking distance, but in a single family home. Each unit owner must surrender some power to the condominium association in order to enjoy the benefits of a condo lifestyle.

In addition to access, the condominium association has other powers as well: its Board of Directors is in charge of the overall condominium finances (collecting and recording condo fees and assessments; paying condo expenses; etc.); as well as the collection of past due fees and assessments; foreclosing on condos; maintaining the property; and making sure that all the unit owners are abiding by the condominium’s rules and regulations (along with its Articles of Incorporation, ByLaws, etc.). [7]

Conflicts Between Unit Owners and Condo Associations: When Lawsuits Are Filed

Understandably, friction occurs in the dealings between unit owners and their Condo Boards quite often. These controversies can escalate to a point where one or the other combatants decides to hire a lawyer. At this juncture, it’s hoped that negotiations can resolve the dispute and settle things to an amicable conclusion.

 

However, experienced Florida condo lawyers have all sorts of war stories about condo cases that as a general rule fall into a few categories, such as:

1. Condo Boards Exceeding Their Power

The Condominium Association’s ability to take any action whatsoever is controlled by a specific set of documents along with current Florida law.[8] Those documents include the legal documents that created the condominium from a slab of real estate (the Declaration) as well as the documents that form and define the Association, establishing it as the governing entity over that piece of real estate (the Articles of Incorporation and ByLaws).

Legal limitations on what the association can do will be defined in these documents as well as how they apply under the law. These can include legal covenants found in the deeds, as well as environmental regulations from the federal level, ordinances at the local level, and the Florida condo laws.

The Condominium Association will take action through a group of people elected to serve in that capacity. These are the individuals who make up the Board of Directors of the individual condo association. Whether they must live on-site, or whether they must be owners themselves, will be established in the condominium’s controlling documents (along with other requirements, such as being of legal age, etc.). [8]

Understandably, directors are advised to review the limitations placed upon their powers from all sources (documents, laws) and decide easily enough whether or not the Condo Board has the right and the power to undertake some action. Can the Condo Board borrow money from the bank to repair the crack in the foundation of a condo tower? Can the Condo Board offer unit owners the option of having satellite television access through a roof-top dish? The responsible directors do their homework and act accordingly.

However, many a lawsuit has been filed against condo directors and condominium associations because they have taken action which they had no legal right to do, or they have failed to do something that they are legally mandated to undertake.

For instance, a Condo Board may exceed its power to fund upkeep or enhancement of the common areas without performing due diligence to discern whether or not the Board has the authority to do so.  The result is that the Condo Board of Directors may be liable for exceeding their authority under the condominium documents.

Condo Boards often get sued over whether decisions made in funding and doing work regarding the common elements of the condominium. Under Florida law, there is no need for the Condo Board to ask for the vote of the condo unit owners — i.e., the full Condo Association — before going forward with work that is not “…not a material or substantial alteration or addition to the common elements.” Lake Region Packing Ass’n, Inc. v. Furze [9]. In these instances, Florida courts impose the “business judgment rule” which states that as long as the judge finds that the Condo Board has acted in a “reasonable” manner in passing the special assessment, then that decision will be respected even if the unit owners are unhappy with the Board’s action. Ferguson. [10]

When Condo Boards take action that exceeds the authority given to the board of directors under the condominium documents, e.g, purchasing land, then the condo unit owners are forced to file a lawsuit to fight against having to pay the assessments that will be needed to fund the board’s action. For example, in Ocean Trail Unit Owners Ass’n v. Mead [11], the trial judge found that board had exceeded its powers when it purchased property on behalf of the Condo Association and entered a judgment to that effect including an award of $194,079.37 in attorneys’ fees to the lawyers representing the unit owners.

Afterwards, the board of directors filed an insurance claim against its insurance company, filed to rescind the land deal, and notified the 150 unit owners of a $500/owner special assessment that would be used to pay the attorneys’ fees as well as paying the judgments ordering return to the unit owners of their original $1,500 assessment, which had been used to buy the property now held to be a land deal made without proper authority.

The Board settled with its carrier. Then, $630,000 was collected in the rescission action. These funds, in addition to the funds obtained from the special assessment, were used to reimburse all unit owners for the original purchase assessment.

The trial judge’s decision was appealed, and the Florida Supreme Court pointed out that while the judge was right in finding that the board of directors had been wrong to demand that the unit owners pay for the judgments, the result was to leave the condominium property as a whole vulnerable to liens by those who won those judgments. Accordingly, the assessments would have to be paid because this was needed to protect the owners from losing their real property. They could then proceed against the directors under a breach of fiduciary duty action.

As the Court explained [12]:

The district court’s decision, which approves nonpayment of assessments by owners, leaves the Association property vulnerable to levy and execution of the judgments. The court essentially evaluated the judgments against the Association and decided whether an assessment to pay the judgments could be enforced on the basis of its evaluation of the reasons for the judgments. However, it is the existence of the judgments that imperils the Association property. The judgments’ existence alone, therefore, authorizes the assessment and necessitates its enforcement.

As set forth in the final judgment entered by the trial court, the reason why the judgments were entered should not determine whether the assessments can be enforced. Rather, a unit owner’s duty to pay assessments is conditional solely on whether the unit owner holds title to a condominium unit and whether the assessment conforms with the declaration of condominium and bylaws of the association, which are authorized by chapter 718, Florida Statutes.

The unit owners elect the officers and directors of the association, and those officers and directors have a fiduciary duty to the unit owners. § 718.111(1)(a), Fla. Stat. (1987). Accordingly, if the officers or directors act in an unauthorized manner, the unit owners should seek a remedy through elections or, if factually supported, in an action for breach of fiduciary duty. The owners’ remedies do not include failing to pay an assessment to protect against a judgment which has been lawfully entered against the association.

2.  The Condo Association and the Common Areas

It is the responsibility of the Condominium Association to make sure that all the common areas — the common elements like sidewalks, parking lots, and sewer drains, as well as swimming pools, spas, hot tubs, and tennis courts, are all functioning and well-maintained. Roofs, stairwells, electrical wiring, and plumbing are also common elements to a condominium that the Association must maintain.[13]

When the Condo Association fails to maintain these common elements, bad things can happen. Failure to make sure that the plumbing is working properly can result in a small leak turning into significant water damage for several units. Failure to keep up the roof after a hail storm or heavy winds (common in Florida) can mean massive roof leaks.

Many lawsuits are filed over Condo Board decisions to spend money for repairs and maintenance [14], and lots of condo unit owners are forced into lawsuits after their Condo Associations made decisions over repair and maintenance of the condo common elements. Sometimes this is when repairs and maintenance have not been done. [15]

More often, these kinds of lawsuits are filed when Condo Boards make decisions and spend money over repairs and maintenance that the unit owner do not appreciate.  For example, in Tiffany Plaza Condominium Ass’n, Inc. v. Spencer [16], the Condo Board was sued over spending money to build a rock revetment at a oceanfront condominium.

On appeal, it was confirmed that the Condo Association would not be responsible for paying damages to the unit owners because the construction was necessary to protect a common element — here, the beachfront — from erosion. The individual condo unit owners legally were responsible for paying the assessment even though they did not consent or approve of the rock revetment.

 

3. The Condo Board Gets Nasty Over a Condo Owner’s Pet

Many condominiums have “no pet” policies or pet restrictions that limit pets to a certain weight limit, or limit unit owners or the number of pets they may have in their home.

More and more often, Florida condo unit owners are pursuing litigation against Condo Boards over unfair restrictions regarding pets.[10] These pet restriction cases are filed under the Fair Housing laws.

Here, the Condo Association is charged with discriminatory practices as the Condo Board has failed to make reasonable accommodations for the unit owner’s pet. Under the federal and state Fair Housing Acts [11], liability for the Condo Association can include not only actual damages as well as an injunction allowing the pet to remain, but the Association can also face compensatory and punitive damages along with paying the plaintiff unit owner’s attorney fees.

One recent example of the pet restriction cases against Florida Condo Associations is Bhogaita v. Altamonte Heights Condominium Association, Inc. [12], where the federal appeals court issued its ruling in favor of the pet owner on August 27, 2014. In this case, the unit owner was a veteran suffering from Post Traumatic Stress Disorder, and owned a therapeutic service emotional support dog named Kane who weighed more than the Condo Association’s pet weight limit of 25 pounds.

The Condo Board tried to oust the pet based upon the condo rule despite the unit owner’s request for an exception complete with three written psychiatric opinions to support the condo owner’s position. The Air Force vet sued and won under both state and federal Fair Housing laws.

Should You Pursue Legal Action Against Your Condo Association?

If a Florida condo owner decides to sue his Condominium Association, Florida law does provide that the unit owner can recover both (1) the fees he has paid his lawyer and (2) the assessment fees he paid the Condo Association to defend the lawsuit. The law states that the unit owner can recover reasonable attorneys’ fees and additional amounts decided by the court as reasonable and necessary to reimburse him or her for his share of the assessments that were levied to cover the lawsuit’s defense.

However, it’s important to know that condominium residents will be required by the Condo By-Laws to keep current with their condo fees and assessments, no matter how much they would prefer to withhold paying them until the controversy is resolved. That means that they have to keep paying money into the opposing party’s pocket no matter how wrong it feels or unjust it may be – especially if that money is going toward helping the Condo Association pay its legal team to keep up the fight against you!

And whether or not you get all that money reimbursed to you will depend upon the judge’s determination of what is your “reasonable and necessary” reimbursement amount. This is something to consider as a practical matter before moving forward with litigation against the condo association.

Conclusion

Floridians choosing a Florida condominium as their home offers them not only a envied lifestyle here on the sunny Florida oceanfronts, but also a tremendous amount of legal protections in place at both the federal and state levels as well as within the individual condominium controlling documents. However, the option of living a condo life style does come with some sacrifices. Condo owners here must deal with the reality that there is a sharing between their fellow unit owners both in enjoyment and responsibility for the condo common elements as each unit owner is a part of the Condo Association. Moreover, the unit owner must have the patience and fortitude to deal with injustice in the form or negligence or wrongdoing by those designed to act on behalf of the whole, either as directors of the Condo Association’s Board or as managers hired to act on their behalf. This may well include a legal fight in a Florida courtroom for justice to prevail.

Endnotes

[1] Florida Condominium Act, Florida Statute 718.111 etc.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html

[2] State of Florida Department of Business and Professional Regulation’s Division of Condominiums, Timeshares, and Mobile Homes

http://www.myfloridalicense.com/dbpr/lsc/condominiums.html

[3] Florida Statute 718.111(1)

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html

[4] Florida Statutes 468.431, 718.111(3), 718.3025

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html

[5], [6] Florida Statute 718.111 (5)

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html

[7] Florida Statute 718.111 (5)

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html

[8] Juno By the Sea North Condominium Ass’n (The Towers), Inc. v. Manfredonia, 397 So. 2d 297 (Fla. 4th DCA 1980)

http://scholar.google.com/scholar_case?case=1357140511197104076&q=Juno+By+the+Sea+North+Condominium+Assn&hl=en&as_sdt=4,10

[9]  Lake Region Packing Ass’n, Inc. v. Furze, 327 So.2d 212 (Fla. 1976)

http://scholar.google.com/scholar_case?case=1186543923705192316&q=Farrington+v.+Casa+Solana+Condominium+Ass%E2%80%99n,+Inc.&hl=en&as_sdt=4,10

[10] Farrington v. Casa Solana Condo. Ass’n. Inc., 517 So.2d 70 (Fla. 3d DCA 1987)

case=5493370632701207630&q=Farrington+v.+Casa+Solana+Condominium+Ass%E2%80%99n,+Inc.&hl=en&as_sdt=4,10

[11] , [12] Ocean Trail Unit Owners Association v. Mead, 650 So.2d 4 (Fla.1994),

http://scholar.google.com/scholar_case?case=5561685636819320055&q=MEAD+OCEAN+TRAIL&hl=en&as_sdt=4,10

[13] Florida Statute § 718.303(1)

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.111.html

[14] See, e.g., George v. Beach Club Villas Condominium Ass’n, 833 So.2d 816 (Fla. 3d DCA 2002)

http://scholar.google.com/scholar_case?case=4496512496642639352&q=George+v+Beach+Club&hl=en&as_sdt=6,44

[15] Metro-Dade Investments, Co. v. Granada Lakes Villas Condominium, Inc., 74 So.3d 593 (Fla. 2d DCA 2011)

http://scholar.google.com/scholar_case?case=17841793472061858461&q=condo+association+failure+maintain+repair+&hl=en&as_sdt=4,10&as_ylo=2010

[16] Tiffany Plaza Condominium Association, Inc. v. Spencer, et al., 416 So.2d 823 (Fla. 2d DCA 1982).

http://scholar.google.com/scholar_case?case=7129773498067903531&q=tiffany+plaza+condominium&hl=en&as_sdt=6,44

[17] Federal and Florida Fair Housing Acts, 42 U.S.C. § 3604(f)(3)(b) and Florida Statute § 760.23(9)(b)

[18] See, Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fisher, et al., 12-60691-Civ-SCOLA, S.D. Florida, March 19, 2014.

http://scholar.google.com/scholar_case?case=12344024658325374785&q=Sabal+Palm+Condominiums+&hl=en&as_sdt=6,44

[19] Bhogaita v. Altamonte Heights Condominium Association, Inc.

http://scholar.google.com/scholar_case?case=17660211447780084138&q=Bhogaita+v.+Altamonte+Heights+Condominium+Association,+Inc.,&hl=en&as_sdt=6,44

What is a Nuisance Under Florida Condominium Law?

Posted By on October 21, 2014

Florida condo unit owners are guaranteed the right to enjoy their homes as they see fit under Florida law with one big (make that HUGE) limitation: they cannot use their property in such a way that it injures or impedes the rights of another owner.

Florida condo unit owners can decorate their homes as they see fit. Bright orange walls for a dedicated Florida football fan? No problem. Sleep on the floor because of a bad back? No worries. But do something that crosses the line and interferes with the rights of others in their use and enjoyment of the condo property, and you’ve got a problem. You may be challenged as causing a “nuisance” under Florida condo law. If so, then Florida law can force you to stop or to change your ways.

Florida Law of Nuisance

As judges describe it, the reason for nuisance law is based upon the doctrine of “sic utere tuo ut alienum non laedas,” which means “use your own as not to injure another’s property.” See, Rae v. Flynn.

In Florida law, every unit owner has the legal right to enforce the condominium documents (Bylaws, Condo Rules and Regulations) against all the other condo owners. Hopefully, the condo unit owner does so by first trying to resolve the matter with his neighbor face to face. If this is not successful, then the condo owner’s next step is to formally complain to the Condo Board about the problem he or she considers a nuisance.

The Condo Board will then review his complaint against the condo documents to determine if this situation is a nuisance that is a “matter of common interest” as defined within those documents. If the Condo Board does not see things his way, the unit owner is entitled to proceed against the aggravation directly in Florida courts via a lawsuit filed against the neighbor who is creating the nuisance.

Nuisances result in all sorts of situations. Condo fights have been brought into Florida courtrooms for things like the noise created by an upstairs neighbor walking on their newly installed terrazzo tiles and for the secondhand smoke coming from a neighboring unit.

Common Example of Condo Nuisance: Barking Dogs

A common example of a nuisance case involving unit owners is a condo owner with pet dogs. Dog owners whose beloved pets disturb other unit owners because they bark too much or because they give off offensive odors (think dog poop left in the common areas, for instance) can face charges that they are creating a nuisance.

Florida courts have held that dogs who bark too much can form the basis of injunctive relief, where the nuisance barking must be stopped (as, for example, having the unit owner keep his dogs inside his condo.) The burden of proof here is to show that the plaintiffs are “… substantially and unreasonably disturbed notwithstanding proof that others living in the vicinity are not annoyed.”

Proving Nuisance Isn’t Easy

Given that condo nuisance is defined within the individual condominium’s controlling documents, and that each nuisance is unique and there is no established legal standard for defining “nuisance,” proving an individual nuisance case can be challenging. Even the unit owner can sometimes be argued to be a “nuisance.” Consider the case of Florida condo owner Nancy Wear.

Florida condo unit owner Wear won over $200,000 in a condo nuisance jury verdict over her demand that a trash can be placed by the condo mailboxes, so she could immediately toss all the junk mail she received there, rather than having to cart it to her condo to throw it away. Her request was denied, so Mrs. Wear began dumping her junk mail on the floor there by the mail boxes in protest.

This got lots of attention, of course. Result? The Condo Board considered Mrs. Wear’s actions to be a “nuisance” and took steps to evict her from her condo.

It took Nancy Wear eight years to win her fight in a vexing lawsuit that went up to the Florida appellate courts more than once before her ultimate victory against the Alca Condominium Association.

Mrs. Wear used the jury award to pay off that condo mortgage. (Important note: the fact that Nancy Wear was an accomplished attorney obviously served her well.) While we’re not sure, we’re betting that Nancy Wear got that trash can.

Conclusion

There is no set formula for deciding when something is a “nuisance” for a condo owner. Each case is unique and will be decided by the judge and jury on a case by case basis. It’s important to evaluate your case with a Florida condo lawyer for its strengths and weaknesses, recognizing that whether a nuisance exists or not is a question of degree, and different people (i.e. a judge or jury) may see the issue differently than you do.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Deficiency Judgments and Your Credit: Did the Debt Owner Furnish Accurate Information to The Credit Reporting Agencies?

Posted By on October 14, 2014

Update to Deficiency Judgment Collection Efforts

We have asked our clients to obtain a copy of their credit report to determine if the amount reported as due and owing is correct. We are doing so because we have noticed in some instances the amount being sought in the deficiency lawsuit differs from the amount reported to the credit reporting agencies (CRAs). In other instances, we have noticed that the original judgment creditor (the party who foreclosed) reported an amount different from the amount being reported by debt buyers/collectors, like Dyck O’Neal and ClearSpring Loan Services, formerly known as Vantium, to the CRAs.

One question that arises from this discrepancy, is whether or not the Fair Credit Reporting Act applies and if it is being violated. Did the debt collector adequately investigate the amount due before furnishing information to the credit reporting agencies? Another question, is whether Fannie Mae, or other debt sellers, ever told Dyck O’Neal, or any other debt buyer, that some of the debt may be legally noncollectable? The plot thickens and the foreclosure mess continues to morph into another scary object.

You may also be interested in:

Did You Get A Letter From A Debt Collector For A Florida Mortgage Deficiency Related to a Foreclosure Or Short Sale?

Dyck-O’Neal Increases Florida Deficiency Judgment Collection Efforts?: 19 Articles About Florida Deficiency Judgments

Is a Dyck O’Neal Lawsuit Valid if it is Served After July 1, 2014?

 

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

How Do You Draw the Ownership Line Between Florida Condominium Units and Common Elements?

Posted By on October 7, 2014


Here in South Florida, condominium ownership is extremely popular. Our local skyline is filled with condo towers, particularly on or near the oceanfront where condominium projects can offer residents beach access and beautiful waterfront views. Accordingly, there is a lot of law on the books in Florida on how condominium ownership works, and how controversies are to be resolved between individual condo owners and the condominium boards that oversee the everyday operations of the community.

What Does the Condominium Unit Owner Own?

For each buyer of a Florida condo, it’s important to understand where their individual property rights in their home begin and end, and where their ownership changes into that of a shared property right in the condominium’s “common areas” or “common elements.” The condo owner has the same rights as an owner of a single family dwelling, or suburban home, regarding decorating and repairing and maintaining his specific condo unit. Inside that unit, the owner is king.

However, the condo owner’s kingdom has jurisdictional boundaries: step across the ownership line, and the condo unit owner has a shared interest in the rest of the condominium real estate. The stairway inside the condo? The condo unit owner’s sole property interest. The stairway next to the tennis courts? The condo unit owner’s shared ownership with all his other condo unit neighbors.

How Do Condo Owners Determine Where The Property Line Is Drawn?

As a general rule, an individual condo unit is the part of the condominium where each condo owner resides or the “interior shell” (that is, the part of the condominium that is deeded to the owner or the part of condominium that the owner holds legal title to), and the common areas are everything else that is related to the condominium property (common areas are usually maintained by the association unless the declaration says otherwise). However, to be exact, each condo unit owner needs to look to Florida law and the governing documents.

1. Florida Condominium Act

First, the determination of legal rights for Florida condos is delineated in the Florida Condominium Act. Here, for example, if there is a debate between the unit owner and the condo board regarding who is responsible for a repair expense, Florida Statute 718.113 of the Florida Condominium Act will provide the answer.

2. Florida Declaration of Condominium and Bylaws of Association

Second, the actual property lines and real estate rights of the condo owner will be defined in the particular real estate documents that are specific to his condo. The definition of the condo “unit” and the “common areas” of each Florida condominium are defined in detail within the contractual documents creating the condominium itself, I.e., its Bylaws and Declaration of Condominium. These are documents which are provided to the condo owner at the closing table when he buys the unit.

When the real estate development legally becomes a condominium, either as a new project or as a transition of an existing multi-family property into a condominium, a “Declaration of Condominium” is filed in the county real property records. This is of “…paramount importance in defining the rights and obligations of unit owners.” Hidden Harbour Estates, Inc. v. Basso.

The Bylaws of a Florida Condominium involve the documents that create the organization that will oversee the operations of the condominium and create the condominium association. Each Florida condominium is operated and managed by its Condo Board.

3. Deed Restrictions

Third, there are real estate records that may also impact the property rights of the condo unit owner. Deeds to the real estate upon which the condominium sets may have restrictive covenants (deed restrictions) that impact where the line is drawn between each owner and the condominium ownership as a whole.

Why is This Important to the Condo Unit Owner?

In Florida, the Florida condo owner is free to enjoy his condominium as he wishes. He can paint all the interior walls black if he chooses, for example. However, the Florida condo owner shares the ownership of everything outside his unit with his fellow condo owners — and this can mean that the condo owner may not be able to do some things he would like to do – like paint the exterior of his condo entrance black – and he may have to do some things he’d prefer not to do – like pay his share of a special assessment in order to build a hot tub next to the swimming pool.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

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