Community Life: Condo Q&A
Q: I live in a condominium unit. However I am not the unit owner, I rent the unit. I have rented this unit for several years, and as a long-term occupant of the condominium feel I have the right to know what is going on in the community. I recently attempted to attend a board meeting held in the clubhouse for the condominium and before the meeting commenced I was asked to leave. As a resident in the condominium, am I allowed to attend board meetings? R.N. (via e-mail)
A: Probably not. The right to attend and speak at board meetings is the legal right of the unit owner. Section 718.112(2)(c) of the Florida Condominium Act provides that unit owners are entitled to attend the meeting, speak at the meeting, and tape or video record the meeting. The term "unit owner" is defined in Section 718.103(28) and states that unit owner means the record owner of legal title of a condominium parcel.
If you are a tenant, you do not have the legal right to attend meetings unless you hold the unit owner's power of attorney, and assuming the bylaws do not restrict power of attorney holders from attending board meetings.
Tenants are often contributing members in communities operated by associations, and many boards welcome tenant participation. However, there is no legal requirement that the association do so.
Q: The common area of our homeowners' association includes an area for storage of boats and recreational vehicles. Very few of our owners actually use the area, but we have received inquiries from people in adjacent communities as to whether they could pay a fee to store their boats and recreational vehicles in this area. Will this have an effect on our property tax exemption? S.E. (via e-mail)
A: While the association does not normally receive a tax bill for the common areas it owns, the property is in fact taxed. According to Section 193.0235(1) of the Florida Statutes, "ad valorem" (property) tax associated with HOA common areas (called "common elements" in the statute) is passed on to the owners within the subdivision. Property identified on a subdivision plat as "common area" is considered a "common element" for tax purposes so long as the property is used exclusively for the benefit of lot owners within the subdivision.
The Florida Attorney General has issued several advisory opinions that address the "exclusive benefit" requirement of the statute. The Attorney General Opinions deal with the sale to a third party and generally result in separate taxation of the property. It is very possible that a lease to a third party would be treated similarly.
The Attorney General has, however, opined that the use of common areas by guests and relatives of the owners does not affect the "common element" classification. This opinion was given with regard to whether an association-owned golf course open to guests and relatives of owners qualifies as a "common element" under the statute.
I would advise that before proceeding, your legal counsel review this matter and perhaps communicate with the Property Appraiser to determine if proceeding would affect your tax status. Other issues should also be reviewed including compliance with your governing documents, income and sales tax issues, insurance/risk management issues, zoning issues, and the possible trigger of the Americans with Disabilities Act.
Joseph E. Adams has practiced law in Southwest Florida for 30 years, and spent the past 28 years focusing his entire practice on condos and homeowner associations. His firm represents more than 4,000 associations in Florida, including some 1,000 associations in the Southwest Florida market. He personally serves as counsel to a number of condo associations on Marco Island.