Let legal documents guide association's rental policies

Q: Our association has unfortunately approximately 75 percent rentals. I did not know this prior to purchasing, but that was my fault. My question is do we legally have to allow every Section 8 applicant to move in? The landlord owners do not live on the property, and many do not care who they put in their units. We try to be careful, legal and fair in processing the rental units. Lately we have been getting an inordinate number of Section 8 applicants. Many of the applicants are excellent residents. However, some of them move in with large families that exceed our occupancy limits. What recourse do we have?

A: This is strictly a document-driven question. Many associations have language in the documents that allows them to screen new residents and tenants and establish certain requirements that could include criminal records search, credit reports and past residency history. But, the board and the association must be extremely careful not to deny a new resident without reasonable cause. I advise establishing a screening policy that has been approved by the association's attorney. Once you have an approved policy that is inclusive of document rights and your attorney's approval, send a copy to all owners. That policy should include requirements and limits for approval. I must warn you that such background investigations can require the association to maintain strict confidential control of records and very strict recordkeeping.

Getting a loan

Q: Do members of the board of directors have power to sign their names to a loan agreement with a bank in the amount of $4-million without taking a vote from the owners? Many owners are not able to pay the monthly assessments, so the paying owners have to pay for those not able to pay.

A: Usually the board has the power to borrow funds. It would be part of the documents powers, usually found in the Articles. No, it would not be necessary for the members to vote. I do recommend that the board discuss the situation in board meetings and send notices to inform the members of a pending loan.

Calculating fees

Q: I realize that owners of larger condominium units have to pay more when we are assessed for things like exterior painting and roofing. I can understand this being on a square-footage basis. What I cannot understand is why we have to pay more when being assessed for things like the upkeep of our private roads. There are some folks in smaller units that have more people and more cars than we do in a larger unit.

A: Your question has an unfair, yet simple answer. Condominiums calculate the fees by the percentage of ownership listed in the documents and found on your deed. It is not based simply on the square footage unless the developer when creating the documents so dictated that percentage. While fees may seem to be unfair, when you purchased your unit, you agreed to the rules and regulations and the documents. Also, you received a deed and acceptance of the deed committed you to the terms and conditions. I would suggest that you search your documents for the percentage and then check your deed to see if the percentage is the same. Also, check the budget to see if the fees you pay are calculated on the same percentage. I often receive the same question from first-floor owners about their share of elevator expenses. Roads are the same type of issue. Without the maintenance on these components, every unit decreases in value. The only way to change the percentage is to have the owners vote to change their share of the budget, but it would take 100 percent approval, a figure nearly impossible to obtain.

A couple on the board

Q: I am the vice president of our homeowners association. We live in villas, not condominiums. Can a married couple, living together under the same roof, both serve on the homeowners association's board at the same time? Is there any difference if they are condominiums or villas?

A: At the time of this writing, homeowners associations can have husbands and wives as directors at the same time but condominiums cannot, unless they own two or more units. I have heard that the state will pose a change next year to the HOA act to limit joint owners from serving and bring it in line with the condominium act. The current change affects only condominiums.

Fix water fountain

Q: A drinking fountain in our clubhouse is nearly 30 years old and no longer provides cold water. Mold also could be a problem. A resident began a petition requesting the board to replace the fountain, but the president vetoed the replacement. What can we do to force the board to replace the water fountain?

A: It is the board's duty and obligation to make repairs in the common areas. Rather than a petition, I would suggest that you and other members write letters addressed to the board, not just the president, and demand that they restore the fountain as it is part of the common areas. I would further suggest that your letter demand that the directors discuss the fountain at the next board meeting. I would tell the board they are responsible for all the common area maintenance. Tell them to make sure the mold is cleaned and removed.

Richard White is a licensed community associations manager. Write to him at 6039 Cypress Gardens Blvd., No. 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.

Let legal documents guide association's rental policies 01/16/09 [Last modified: Friday, January 16, 2009 3:30am]

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