In a common problem, one condo-unit owner tries to tell landscapers how do their job, but the association employs them – not that individual owner.
FORT LAUDERDALE, Fla. – Question: I am a newly elected director at my condominium association. Our community just turned over from developer control on January 31, 2022. We are trying to find guidance on how our Board of Directors can make decisions for the community.
For example, if we need to enter into a contract, can we obtain a consensus via email? I’ve heard that all decisions must be made at a Board meeting, but our monthly board meeting just happened and the next board meeting is not for another month. Is there a way to allow the president or another officer to enter into contracts without a board meeting? – J.N., Boynton Beach
Answer: Initially, please note that all board decisions and votes must occur at a duly-noticed board meeting. A duly-noticed board meeting is a meeting of the Board where notice has been posted conspicuously on condominium property at least 48 hours prior to the date of the meeting. At that board meeting, the board can properly make a motion and vote to make a decision on behalf of the community. Now, this does not mean that board members are prohibited from communicating with each other regarding association business prior to the Board meeting. In fact, Section 718.112(2)(c) of the Florida Statutes allows board members to communicate with each other via email but prohibits casting votes on an association matter via email.
I understand that situations may arise where a board decision needs to be made but there is some time before the next regularly scheduled board meeting. In those situations, the board can schedule a board meeting as long as it is duly-noticed as described above.
Another option would be for the board to adopt a policy that provides an officer, such as the president, with authority to enter into contracts or make purchases within specific parameters such as value and term of the contract. If the board would like to explore this option, I strongly recommend that you speak with your legal counsel as the board should seek guidance regarding the parameters of the board policy.
Question: We have an owner in our HOA that regularly interferes with our landscaping vendor. She provides them with direction that is contrary to the direction provided by the board. She has no authority to give them any direction.
The landscape vendor has been advised not to listen to her. However, if they do not heed her direction, she yells at them and demeans them. The landscaper has threatened to terminate our agreement and hiring a replacement landscaper will cost significantly more than what we are paying now. What are our options? – T.F., Fort Lauderdale
Answer: You are not alone. We have seen this occurring in a number of community associations – in condominiums, homeowner’s associations, and cooperatives. Often, these owners have an idea on how the landscaping should be done throughout the community. However, they are not on the board and have no authority to speak for the landscaper’s employer – the association.
The association has several options in these situations. Initially, we recommend that the association, through its legal counsel, send a cease and desist to the owner as she is interfering with the association’s landscape vendor. If the owner complies with the cease and desist, then this is no longer an issue.
However, if the owner does not comply, which is the more likely scenario, the board can adopt a rule where it specifically makes interfering with an association vendor a fineable offense. If the owner keeps interfering with the association vendor, then the board can seek to levy fines against her for each instance that she interferes with the landscape vendor.
I am also concerned regarding the landscape vendor’s threat to terminate the landscape agreement. If this occurs, the association will be forced to obtain another landscape vendor at what seems to be a significant increase in price. If this does occur and the owner’s interference is the only reason that the landscape vendor terminated its agreement with the association, then the association could have a claim against the owner for tortious interference with a business relationship. I strongly recommend mentioning this in the cease and desist.
The association may have further options. I recommend speaking with your association’s legal counsel on this matter.
Question: The unit below mine has been experiencing leaks coming from my balcony. The association had an engineer come in and she reported that the balcony needs new waterproofing. Am I responsible for this? – M.S., Boynton Beach
Answer: The answer to your question should be in the maintenance section of your Declaration of Condominium. This section will provide the party responsible for the maintenance, repair, and replacement of various parts of the condominium, including, but not limited to, the building exterior, the unit, and the limited common elements. The balcony is very likely a limited common element to your unit.
In most Declarations, the unit owner is responsible for keeping a limited common element balcony clean and free from debris. The owner might even be responsible for replacing lightbulbs and the fixtures in the balcony area. However, when it comes to waterproofing the balcony slab, most Declarations will keep this the responsibility of the association. This is because there is too much risk associated with allowing different owners with different vendors to waterproof the balcony slabs or even do structural slab work on the balconies.
Although it is likely the association’s responsibility, I recommend reviewing this matter with your legal counsel to confirm the party responsible to waterproof your balcony.
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, DeBoest & Cross, 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.
© 2022 Journal Media Group. John C. Goede, Esq., is a shareholder of the Law Firm Goede, DeBoest & Cross.