Ask An Expert: Your Condo, HOA Questions

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By: John C. Goede, Esq. Special to the Boca and Delray newspapers

Q:  Our condominium documents provide that every owner is entitled to a parking space, either covered or uncovered. An owner is requesting to install a carport over his parking space so that it becomes a covered parking space. Can the board of directors approve this improvement or do the members need to approve this improvement as well?

  1. B.,  Boca Raton

A:  The answer to this question depends on a number of factors. First, I would want to review the original condominium documents and specifically any original site plan or survey indicating which, if any, of the original parking spaces were intended to be covered. Many original site plans will specify which parking spaces should be covered. This is important because many condominiums alter the common elements over time from the original development plans with or without proper approval and deriving the intent of the developer from these site plans can be helpful.

Next, if there was never a carport over this parking space, and the space is a common element or limited common element, it would be a material alteration to install the carport. Because you are altering the appearance of the parking space by adding a roof, the alteration must be analyzed as a material alteration. Florida Statutes Section 718.113 provides that material alterations must be approved pursuant to the terms of your specific Declaration of Condominium and, if there is no specific provision in the declaration, the alteration must be approved by at least 75 percent of the entire membership.

That being said, a review of your documents is critical because most condominium documents provide for a specific procedure and/or threshold for approval requirements. Depending on the cost of the carport, it may not require membership approval or, depending on the specific documents, it may be a relatively low voting threshold. I have also seen documents where material alterations requested by a unit owner only require board approval, but material alterations initiated by the board are subject to the membership voting requirements. Thus, I would highly recommend you have a licensed Florida attorney review your specific condominium documents and provide an opinion on any approval requirements.

Q:  Our condominium operating budget will almost double next year due to the unexpected replacement of the irrigation system.  Owners are objecting and claiming the board can’t increase the budget more than 15 percent.  What is the law on this?

  1. G.,  Boca Raton

A:  Generally, the board of directors is in control of the budget, but Florida Statutes Section 718.112 provides that any budget adopted by the board exceeding 115 percent of assessments for the preceding may be subject to a membership veto. That being said, the same statute provides that expenses for the repair or replacement of condominium property are excluded from the calculation.  So, if all of the increase is due to the replacement of the irrigation system on the condominium property, your budget may not actually exceed the statutory threshold allowing for a membership vote on the budget.

John C. Goede, Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Please visit our website www.gadclaw.com, or to ask questions about your issues for future columns send your inquiry to: question@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, 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.