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Community Living: Managers and attorneys serve in advisory roles

Q: Do professionals such as attorneys and managers under contract to this condominium have any obligation to see that the board operates under the guidelines of the condominium act and our condominium documents?

A: Other than ending their contract and services, the manager and attorney have only one responsibility: to report to the police evidence of fraud or theft. Management and attorneys can advise the board but have no power to force them to take the recommended decisions. If you have a problem with the board and its failure to comply with the statutes and documents, you have several alternatives. You can contact your own attorney and sue the association. You can start a recall petition by contacting your neighbors and ask them to support the recall. You can establish a new slate of candidates for the next annual meeting. You can contact the Ombudsman Division or file a written complaint with the state. The simplest solution is writing the board a letter to tell its members of the errors and ask that they amend their actions.

Role of management company limited

Q: I have heard different opinions about the duties of a management company managing a condominium community. Is there documentation available stating exactly the duties of a management company?

A: Too many association members place too many perceived duties on their manager. All responsibilities for the operations and decision making are held by the board of directors but these responsibilities can be delegated to management under the board's authority. Management must answer to the board for breach of these duties. In addition, management has a fiduciary duty to the members and the board as well as contract obligations, board policies, board instructions, and statute requirements. In other words, if an owner has a problem, he can report it to management but management can only solve the problem if it is within its scope of duties.

Raise barrier hedge complaint at meeting

Q: A common area privacy hedge behind my home has been attacked with a fungus and many plants have died. The hedge was a barrier for both privacy and sound from the boulevard that my home borders. I have sent several letters that have been disregarded by the board. Nothing has been done to care or repair the barrier hedge. I feel that it lowers the value of my home. Any suggestions you may have will be greatly helpful. Also, if I engage an attorney, who pays for the legal costs? Can you put pressure on my association's board to replace the hedge?

A: I receive many questions asking me to take action. Since I am a third party outside of your association, I have no powers to solve problems. I cannot provide legal advice or interpretations in this column. What I do provide is advice, recommendations, and solutions to operational and maintenance problems. In addition, I report on sources of information that can help save money or provide safer conditions, and make operational suggestions. I never say that my answers or suggestions are the only solution. What I do say is that my answers and recommendations are based on experience and other reliable sources. As to your problem, you would need to determine if legal action is necessary and then talk to an attorney to find the answer to who pays. My guess is that you will find that the legal costs will far exceed the cost of the hedge replacement. It may be better for you to tell the board that if they do not fix the problem, then you will take action to replace the hedge. While you cannot encumber the association by charging the expense to replace the hedge, maybe there are neighbors that have the same problem and will join to fix the problem. I would make sure that the board discusses the problem at the next board meeting.

Annual budget is board's responsibility

Q: Does our condominium board of directors need to have our next annual budget passed by the condominium owners or can they pass it themselves?

A: Your board has fiduciary duties and is responsible for the maintenance of the association. As such, it has the responsible to repair, replace, create adequate reserves and, as such, must prepare a proper budget. It approves the budget, not the members. If the members want to reduce the reserve budget or eliminate it, they can do so at a members meeting. And, if the expenses increase by at least 115 percent, they can provide an alternate budget. Other than these two exceptions, the board's budget will stand.

Questions surround possible candidacy

Q: Our HOA documents say that one cannot vote in an election if they have not paid their HOA dues. We have a person who has not paid and wants to be president of the HOA. Our docs have no ruling as to who can be an officer. Can you provide suggestions on this situation?

A: If your association has so few that volunteer as candidates, you have far greater problems and he may be elected. Remember that association members do not elect the officers, only directors. He must first be elected as a director and then the directors elect the officers. My question is, has the board placed a lien on his home and when will it start foreclosure action? The simple answer is that if your members elect him, and the directors elect him as the president, something is really wrong. If this happens, sell and move.

Richard White is a licensed community associations manager. Write to him at 6039 Cypress Gardens Blvd., #201, Winter Haven, FL 33884-4115. He cannot provide personal replies by mail, but you can e-mail him at CAMquestions@cfl.rr.com. Please include your name and city.

Community Living: Managers and attorneys serve in advisory roles 01/02/09 [Last modified: Wednesday, November 3, 2010 9:01am]

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