Ask An Expert: About Your Condo, HOA Rules

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By: Attorney Steven J. Adamczyk, a shareholder at Goede, Adamczyk, DeBoest & Cross Special to the Boca and Delray newspapers

Q. I live in a gated community that has a golf course.  The homeowners association (HOA) and the golf course are separate entities.  As a member of the HOA, I am not required to be a member of the golf club but rather it is voluntary.   The HOA board wants to make it mandatory that all HOA members be members of the golf club.  Can the board do that?

G.B., Boca Raton

Section 720.31(6), Florida Statutes (the HOA Act) provides that: An association may enter into agreements to acquire leaseholds, memberships, and other possessory or use interests in lands or facilities, including, but not limited to, country clubs, golf courses, marinas, submerged land, parking areas, conservation areas, and other recreational facilities. An association may enter into such agreements regardless of whether the lands or facilities are contiguous to the lands of the community or whether such lands or facilities are intended to provide enjoyment, recreation, or other use or benefit to the owners. All leaseholds, memberships, and other possessory or use interests existing or created at the time of recording the declaration must be stated and fully described in the declaration. Subsequent to recording the declaration, agreements acquiring leaseholds, memberships, or other possessory or use interests not entered into within 12 months after recording the declaration may be entered into only if authorized by the declaration as a material alteration or substantial addition to the common areas or association property. If the declaration is silent, any such transaction requires the approval of 75 percent of the total voting interests of the association. The declaration may provide that the rental, membership fees, operations, replacements, or other expenses are common expenses; impose covenants and restrictions concerning their use; and contain other provisions not inconsistent with this subsection. An association exercising its rights under this subsection may join with other associations that are part of the same development or with a master association responsible for the enforcement of shared covenants, conditions, and restrictions in carrying out the intent of this subsection. This subsection is intended to clarify law in existence before July 1, 2010.

So, you first need to check the governing documents to see if this type of arrangement is authorized. If so that procedure would need to be followed. If the HOA Declaration is silent then 75 percent of the HOA members would need to vote in favor of joining the golf club.

We have a small five-unit condominium. Three of the owners serve on the board. One of the owners regularly violates the rules. The board would like to levy a fine against the person.  However, we can’t create a fining committee as there is only one owner available to serve on the committee.  What do we do?

J.C., Boca Raton

A.nThe Condominium Act provides that after the board levies the fine the violator must be given an opportunity for an appeal-like hearing. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. The plural use of the word owners indicates that the committee must be made up of more than one owner. So, in your case, there is only one other owner eligible to serve on the committee and that is insufficient to comply with the law. So unfortunately, I think you are stuck and basically cannot fine the owner. The law also allows the suspension of use rights for rule violations as well but the committee must also approve the suspension. So that enforcement tool would also be unavailable in your case. As such, the board should consider other remedies such as filing for arbitration with the Division of Condominiums.

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

Goede, Adamczyk, DeBoest & Cross is a full-service law firm with a focus on condominium and homeowner association law, real estate law, litigation, estate planning and business law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida. 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.