Richard White: It is very time consuming and expensive to change documents

Q. Our present covenants (the documents) were created by a builder and for the builder. There are certain areas in our community that are owned by the city, such as the streets and a park. We maintain and operate the other common areas. Since the covenants are old and were created for the developer, we would like to change them to reflect the members needs and wants. We have asked the board to study the modification of the documents, but they have failed to act on the request. The board rarely listens to the members’ requests. How can we get them to change and revise these covenants?

— J.C.

Oldsmar

A. I am rarely in favor of modifying or changing the documents. The key reason is that all members purchased their property under the rules and regulations and deed restrictions found in the documents. If the documents are modified, some owners will lose key amenities for the reason they purchased. It is very time consuming and expensive. If you are not happy with the current board, then work to elect new directors. Changing or modifying documents is not a simple venture. You must engage an attorney to draft and work with the board to develop the changes. The members must vote to approve the changes and then the documents must be recorded. Some documents require lenders, first mortgage holders, to approve changes and modifications. It is not only the members that vote to change the documents, but maybe the lenders as well. Remember, when you change your documents, you change the deed restrictions and can take away some rights of the owners or add obligations. To my thinking, it is an unnecessary expense. If done incorrectly, it can prevent title transfers or lenders will not lend money for mortgages. Even worse, some lenders may call existing mortgages. If you were not happy with the covenants when you moved to the community, why did you buy?

Q. My condominium unit had a wastewater backup. I called a plumber and he unclogged the main sewer line between three apartments. This is not the first time the pipes have clogged causing a backup of water in my unit. This, however, was the first time the plumber reported that there was a problem in the main line, not just my pipes. I have paid the bill and sent it to the board for reimbursement. They have refused payment. I have sent a letter to the board about fixing the main sewer line but they have done nothing to make the repairs. Now I fear that the sewer line will flood my unit again and I will be stuck to pay for the repairs and damage. Is there a law compelling the condominium to make the repairs and pay for the damage?

— L.F.

Winter Haven

A. Read your documents and find the section on common utility lines and common pipes to confirm responsibility. Make sure the plumber has submitted a written report that the backup was caused by a common main pipe. Ask him to include a solution to the problem. Send the board a certified letter with the information and ask that they discuss the problem at the next board meeting. Talk to the neighbors above and below your unit to insure that they are aware of the problem. Ask for their support in your request for repairs and reimbursement. In your letter, include a warning that when the next stoppage occurs, you will have the board make the repairs. If all else fails, file a small claims court case or engage an attorney.

Q. The clubhouse and other recreational facilities are not owned by the association or members. Recently, owners offered the properties to the board for purchase. While many of the owners were in support of having the association buy the facilities, the board wanted to delay discussion until after the summer when they said the snowbirds would return. During the summer, six inside members of the community purchased the properties. They have announced an increase in the fees we have to pay. Was this right and what can we do?

— G.R.

Holiday

A. Unfortunately, I am not in a position to offer a solution or action that you need to take. You need to talk to your neighbors and the board to find out the future of the facilities. If the board sleeps on their duties, then the members must suffer the loss. Communities that do not own the club and other facilities will face difficult decisions when the property comes up for sale. I urge other associations facing this situation to plan ahead, even to the point of establishing a separate account to build a war-chest fund to purchase at some future time. Such an account would act like reserves. It is better to plan today rather than yesterday which seems to be the situation you face.

Q. We are a small condominium with limited parking. When the developer turned over the property, they agreed that we were short of necessary parking, but they did not do anything to add to the parking. The unfortunate matter was that the board accepted the turnover without receiving anything in writing or the funds to improve the parking problem. While we have the space to increase parking, our board does not seem to know what to do or how to pay for the new spaces. Where do we go from here?

— R.R.

St. Petersburg

A. Forget the developer. It would take too much time, effort and funds to sue the developer. You will need three things: An estimate of the costs, a plan to collect the funds for the addition, and the approval of the members to make the addition. You will need approval, most likely, from the city or county for the addition and required permits. The addition of parking is not necessarily a major construction problem if you have the available land. Check your documents to determine their requirement for a capital improvement. More than likely you will need to call a members’ meeting to vote on the issue. Once the members approve the additional parking, the board has the right to impose a special assessment and take appropriate action to add the parking.

Q. I had the impression that a quorum of a board of directors may meet in private to discuss legal matters with its attorneys, to discuss contractual, management or employee problems without violating the Florida Sunshine statutes. There is no reference to this in our rules and regulations or documents regarding special meetings. Is there such an exclusion?

— S.M.

New Port Richey

A. Florida Sunshine Law (FS 286.011) does not apply to associations and boards of directors. However, the association laws have other requirements. FS 718.112 and FS 720.303 require that anytime a quorum of directors meet to discuss association business, it is considered a board meeting and must be noticed and open to the members. The only exception is when the board meets with the association’s attorney to discuss pending legal action. The state does not recognize workshops or any meetings where a quorum of directors gather and the members are not noticed or allowed to attend. Less than a quorum of directors can meet in private, but they cannot make final decisions. All motions and business must be in the open and with proper notice.

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 CAMquestion@cfl.rr.com. To be considered, questions and comments should include the author’s name and city. Questions should be about association operations, not legal matters.

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