Richard White: Is move from concrete to glass a material change?

Q. I live in a condominium on the ocean beach, and our balcony has been damaged by concrete railing breakage. The total cost for this will be around $1 million for the entire building. The board is considering glass railings that would increase the cost one third more. The logic is that glass would never need painting and would last longer. Can the board do this without having the unit owners vote? Is it a material change? J.D. — Sunny Isles

A. As a manager, I was taught that anytime the color, texture, form, material, shape or size was changed, it was a material alteration. It would be simple to solve the problem by having the members vote on the change. Failure on the part of the board to seek such an approval could result in a lawsuit at considerable expense to the association. As for glass, it is not necessarily maintenance free or long lasting as it can cloud up and must be cleaned. In addition, I would suggest that the board seek guidance from the association’s insurance agent about the increase in insurance costs.

Q. A single elderly woman lives alone in her condominium unit. However, on the deed, it also names the daughter for tax purposes when her mother dies. Each condominium is allowed one parking space in the parking area. The woman doesn’t own a car. Is it legal for children on the deed, not living with her, to store their car in that space because their name is on the deed? J.N. — Port St. Lucie

A. Maybe the daughter has the car there to be available for an emergency. Is the car a threat? Is the car junk, abandoned and ugly? Does the car leak oil on the parking space and driveway? When my mother was in her final years, I bought her a car to use. The title was in my name and I paid the insurance and maintenance. It was parked at her home but she rarely used the car and I had to visit her and start the car to keep it operating. If the daughter owns the car, I am not sure if you can do anything as long as the car is properly licensed and insured. If not, then maybe the county or city has laws that require the car be properly licensed.

Q. Our board is planning to borrow money to pay to repair damage caused by a lightning strike and fire to our clubhouse. We had insurance, but the deductible and uninsured contents leave us $150,000 short. Does the board have the right to borrow the money without the members’ approval? H.U. — St. Cloud

A. Usually the articles or bylaws grant the powers to the board to borrow funds. There is an option the board has and that is a special assessment. Another option, the board can have the members vote to approve using reserve funds designated for reserve items. I recommend a special assessment rather than using reserve funds or borrowing money. By using reserve funds, you place the future expenses in jeopardy and the members must pay a higher maintenance fee to rebuild the reserves. As for borrowing funds, many banks will require the board to personally sign the note and/or mortgage and guarantee first rights to the monthly fees. What is it that when our society has the need for money we first think of credit cards or loans? To encumber future collections with loan payments places an obligation on the members to pay higher maintenance. Not only will the loan require payment of the principal, but interest also will have to be paid. It will also involve notifying any future buyer of the debt service and may lower the value of the units.

Q. On our meeting agenda, should unit numbers and owners names be listed when addressing rule violations? The board has notified those owners who have confirmed violations with letters in writing. E.B. — Brandon

A. While there is no law to prevent the listing of owner’s names and addresses in a public meeting, I do not recommend it. When discussing a violation and the action taken, it is best to use code words to identify the specific violation. As an example, you can have a separate list of name, address and the violations. On the agenda under the item Rules Violations, you list Item 1, Item 2, etc. Then in your discussion, all references would refer to the Item 1, Item 2, etc. It is not that you are trying to keep things secret; you are keeping member’s violation confidential and not the action to enforce the rules. The board can discuss and approve action against a rule violation without disclosing the person in an open meeting. The list is not confidential and can be given to members who request a copy but the idea is that neighbors with violations do not have their names in the open during the meeting.

Q. We are an adult condominium, and I understand the regulations concerning occupancy. The association recently passed an amendment to our documents stating that new owners must be over 55 years of age in addition to the occupants being over 55. Does this new rule conflict with state regulations? H.R. — Safety Harbor

A. Federal and state laws say you (the association) cannot discriminate against any age in sales or rentals of real estate. The Adult Community Act is an exemption that allows communities to discriminate for occupancy as long as the community complies with other requirements. The rule that your board approved apparently would violate the act because it will discriminate against buyers. Would the rule affect an adult child, under 55 years of age, buying a unit for their adult parents to occupy? The other part of the equation is did the board seek guidance from an attorney in amending the documents? If a prospective buyer is refused and they file a lawsuit for discrimination, the board and their attorney must prove that the amendment is proper.

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Richard White is a licensed community association manager in Florida. Questions should be mailed to him at 6039 Cypress Gardens Blvd. # 201, Winter Haven, Fl. 33884-4415; e-mail To be considered, questions and comments should include the author’s name and city. Questions should be about association operations, not legal matters.

© 2006 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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