Legal Matters – Steven J. Adamczyk
Q: A downstairs unit suffered water damage in our condominium building and we are fairly certain the damage is coming from the shower pan in the upstairs unit. The owner of that upstairs unit is refusing access and won’t let the association fix the common elements. The owner has represented that he fixed the problem, but he won’t let us confirm that the damage has been mitigated. What do we do now?
T.B., Naples
A: This is more common than you would think, and it is unfortunate because standoffs over access will typically only exacerbate any water damage while the parties try to figure out how to mitigate the damage.
The short version is that the association has the right of access. In fact, the statute provides that the condominium association has the irrevocable right of access. Specifically, Florida Statutes Section 718.111(5) provides that “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.” The basis of this statute is that owners should not be able to prevent the association from protecting its own property, mitigating damage, and preventing damage from spreading to other surrounding units. Thus, if there are legitimate concerns that there is water damage between units and the owner is refusing access, the association should gain access pursuant to the above statute.
That being said, quoting the above statute may not get the association in the front door. In a condominium, the appropriate mechanism is to pursue an action in arbitration with the Florida Department of Business and Professional Regulation (DBPR). The Florida DBPR employs arbitrators that are tasked with hearing disputes on many issues involving condominiums and unit owners, but specifically they are authorized to hear cases and serve as arbitrators on issues of access. Assuming the facts are in the association’s favor, the arbitration route should provide a cheaper and faster resolution for the association compared to the court system. Before you can go to arbitration, you first need to provide a notice of the association’s intent to file an arbitration action and we highly recommend that you consult with legal counsel during this process to make sure the dispute is ripe for arbitration, that you provide all necessary notices, and that you review your specific documents to look for any self-imposed requirements in enforcement actions.
The other wrinkle to this question is that there is a very new law that will provide an alternative mechanism. Effective July 1, 2021, condominiums are not forced to use arbitration for this type of dispute. Disputes concerning elections and recall efforts must still utilize the arbitration dispute resolution process, but the parties are also authorized to pursue mediation and the court systems. This latter dispute resolution using mediation and the court system is currently the vehicle required by the statutes governing homeowners’ associations (HOAs) for disputes in HOAs. In short, in lieu of arbitration, condominiums can offer to mediate with the party refusing access (or violating some other part of the covenants) and then seek relief through the court system if mediation is either refused or unsuccessful. In arbitration, the arbitrator is tasked with picking a winner. In mediation, there is a neutral third party whose role is to help the parties find a solution that is agreeable to both parties and therefore avoid having the courts pick a winner.
Depending on the specific facts and circumstances in your case, your board may choose to pursue arbitration or mediation. We also recommend you consult with your legal counsel to help guide the association through these strategic decisions.
Q: Our condominium president has been serving on the board for fifteen years and keeps getting re-elected as president. We were under the impression that you were prohibited from serving for this long. What is the law on this?
K.J., Bonita Springs
A: The answer to this question has lacked clarity in recent years, but the good news is that doubt will soon be gone. A few years ago, the legislature adopted a statute prohibiting directors from serving more than four consecutive terms of two years, thereby creating a limit of eight years on the board. Unfortunately, the statute presumably contained a glitch because it did not limit how many consecutive one-year terms could be served. On top of that, there were conflicting opinions about whether years before that new statute would count towards the eight-year maximum and whether a director could just resign the day before the election to avoid serving consecutive years. The statute did not mention how to handle situations where a director had already been serving for at least eight years leading up to that new legislation.
Over the last couple of years, the general consensus has been that the eight years did not start counting until that new legislation was enacted, meaning it wouldn’t really be a problem for anyone until roughly 2025. Thankfully, a new statute effective July 1, 2021 clarifies this exact point and provides that the eight is counted from the service commencing on or after July 1, 2018.
So, in your particular situation, fifteen years represents quite a commitment to your community, but the length is also not (yet) an issue to determine eligibility because the current eight-year restriction would not impact eligibility for a few more years.
Q: Our HOA recently conducted an election and owners were confused because the ballot included a signature line. Most people signed the ballot and now the residents are asking to inspect the ballots. There are some personality disputes on the board and we fear that it would be harmful to the community to disclose how each owner voted in the election. Is this information confidential?
S.C., Naples
A: This answer is very different in condominium associations because condominium associations are required to use secret ballots in the election of directors. In a condominium, there should be no signature or identifying information on the ballot and electronic voting is even supposed to provide for secrecy in the election process.
In an HOA, the rules are different because the statute itself does not dictate that the association must use secret voting. In fact, some communities require a signature on the ballot, and some utilize limited proxies signed by the owner in the election of directors. If you question whether a secret ballot was required in your HOA, you will need to engage a licensed Florida attorney to review your specific bylaws and the minutes from the meeting to determine whether a secret ballot was required.
As a result, there is nothing secret about the ballot if you assume the association in your situation was allowed to add signature lines to the ballot. Election materials are official records that must be maintained by the association and there is no exception to accessibility. As a result, for so long as the association maintains the ballots and voting materials (and it should maintain them), homeowners are allowed to inspect the ballots and would be able to see how each owner submitting a ballot voted in the election.
Attorney Steven J. Adamczyk is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross. Visit the website at www.gadclaw.com or ask questions about your issues for future columns by sending an inquiry to: info@gadclaw.com
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 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.
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