Law Review Blog - Attention Florida Condo Owners: Avoid or Mitigate Unwarranted Special Assessments!

ATTENTION FLORIDA CONDO OWNERS: AVOID OR MITIGATE UNWARRANTED SPECIAL ASSESSMENTS!

I write this post as a concerned condominium ("condo") owner, who recently experienced, and in fact am still addressing, the misappropriation of reserve funds by the board of directors of a Condominium Ownership Association ("COA") in violation of Section 718.112(2)(f)(3) of the Florida Code. While the specifics of my personal experience are rather complicated and beyond the scope of this post, my goal is to inform as many readers as possible of this potential risk so that they may take affirmative actions to avoid such a hardship.

Whether you own a condo as your primary residence, vacation home, rental property, or investment property, there are a few very important things you should keep in mind. Too often, condominium owners will purchase their property with very little (if any) knowledge about how the common areas and most importantly, common funds, are managed.  In many cases, condo owners become so swept away by the excitement of homeownership, the glamour of owning a vacation home, or the anticipation of a promising return on their investment, that they fail to recognize how the monthly/quarterly/annually association fees are managed. Sadly, excited homeowners willingly yet blindly pay association fees without question or research, until the day they receive a special assessment from the association, which in some instances can be thousands of dollars.

As defined by Section 718.103{24) of the Florida Code, a special assessment means “any assessment levied against a unit owner other than the assessment required by a budget adopted annually." Basically, a special assessment is an additional fee charged by the COA, above and beyond each condo owner's individual association dues paid. Special assessments are inevitable when the reserve money runs dry or below an allowable threshold per the community governing documents. I can say first hand that there is nothing more unwelcomed than an unanticipated special assessment, especially when you own four condo units in the same community! By this time, it is too late; the damage is done.  Unless you have saved for such an assessment, this can pose a severe financial hardship.  Failure to pay a special assessment in a timely manner can create grave repercussions such as a lien on your property! The reality is, at this point in the process, hiring an attorney to challenge the COA is cost prohibitive. Reluctantly, most condo owners pay the special assessment without any say in the matter.

COA dues are usually paid monthly or quarterly by each individual condo owner to preserve the integrity, safety, and enjoyment of the community common areas. If properly managed, dues are paid in amount which allows for reserves.  While the state of Florida does not require that a community maintain a surplus of reserve funds, reserve funds are vital to the long-term health and sustainability of a community. If reserve funds run out, who pays? The condo owners!

Know your rights! What happens if you own a condominium and the board of director misappropriates your funds?  Who can help?  The Department of Business and Professional Regulation ("DBPR") is a regulatory agency under the executive branch of the Governor that is charged with licensing and regulating businesses and professionals in the State of Florida.  The DBPR is governed by Chapter 120 of the Florida Statutes. The Division of Florida Condominiums, Timeshares, and Mobile Homes "provides consumer protection for Florida residents living in the regulated communities through education, complaint resolution, mediation and arbitration, and developer disclosure." As a condo owner, you have rights! If you believe there is misappropriation of funds or some other wrong doing, investigate or even file a complaint with the DBPR. They are there to help!

Importantly, not every board is bad. In fact, it is important to remember that members of the board are condo owners too, and generally want what is best for the community. Board members have daunting and demanding tasks and often must make difficult decisions regarding the management of community funds. Healthy COA boards encourage condo owner participation and prefer owners who are involved

in the decision-making process. Some, however, may be sneaky or may simply be ignorant as to how to appropriately manage community funds. Similarly, not all special assessments are bad. As communities age, special assessments are needed from time to time to properly maintain a safe and secure community, to ensure amenities are operational and enjoyable, and most importantly, to protect your asset. No one wants to pay to live in a run-down community. And the shared amenities may have been the very reason you bought in that community in the first place. After all, not everyone can afford a lakefront property.  But with shared expenses, many condo owners can come together to own a lakefront community with deeded lake access to a desirable skiable lake!

The pride of homeownership is truly unique and special, however, becoming a savvy condo owner will assist you in protecting your asset. According to CondoAssociation.com, in order to maintain a healthy and informed COA, "condo boards should be very proactive in keeping condo owners current on condo association fiscal matters."  As a condo owner, you should attend COA meetings and become involved. Even if your time is sparse, make the effort to become familiar with the financial viability of your COA. How much money is in your reserves? Are there any anticipated expenditures that were not included in the COA's annual budget?

If you take nothing else away from this post, get involved today to avoid or mitigate potential conflict in the future. Become a knowledgeable condo owner who can make informed decisions about how and where your hard-earned money is spent. Run for the board or at least vote and pay attention to the overall maintenance of your community. If you notice deterioration, immediately demand an explanation. Protect your asset! When in doubt on how to proceed, consult with your community association management company, with the DPBR, or with a reputable real estate attorney licensed in your state.

 

 

  • March 30, 2017

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