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Directors may limit use of recreational facilities

Question: Our condo is getting ready to take over from the developer very soon.

We have a problem with allowing our unit owners the convenience of holding meetings for organizations such as B'nai Brith, Sons of Italy and Daughters of the American Revolution in our clubhouse.

With a board of unit owners soon to be installed in office, would it be proper to permit these organizations to hold meetings in the clubhouse? _ H.

S.

Answer: Section 718.128 addresses this problem. That section of the Condominium Act states very clearly that the recreational facilities, which of course includes the clubhouse, shall be available to the unit owners and their invited guests for the use intended for the facilities.

The law goes on to state that the board of directors may adopt rules and regulations for the use of such facilities.

A Men's club or a Ladies' club, where membership is restricted to unit owners, would have a clear right to meet in the clubhouse. However, meetings by outside fraternal, social, charitable or fund-raising organizations might very well infringe on the unit owner's right to the use and benefit of the clubhouse.

I think the matter rests within the discretion of the board of directors under its rule-making power.

Extended warranty

Question: The warranty period of the developer is drawing to a close. However, since the board of directors are employees of the developer and therefore controlled by the developer, nothing is being done to correct major construction defects like huge cracks in the building walls and concrete driveways.

In what way, if any, are the unit owners protected when the warranty period runs out? _ W. L.

Answer: Section 718.203 of the Condominium Act states that with respect to the roof, structural parts, mechanical, electrical and plumbing elements serving the condominium building, the developer by operation of law impliedly warrants their fitness for use for a period of three years after completion of construction or one year after the unit owners gain control of the association, whichever occurs last, but in no event for more than five years.

This section of the law gives some protection to the association and condominium unit owners who are unable to take any legal action against the developer because he is in control of the association.

In addition, with respect to common law actions against the developer for negligence in the design, planning and construction of the building, independent of any statutory warranties, the four-year statute of limitations does not begin to run until the unit owners have elected a majority of the board of directors. The statute is mandated by Section 718.124 of the Condo Act.

As was recently stated by Judge Joanos in Regency Wood Condominium vs. Bessent, Section 718.124 was intended to prevent a developer from retaining control over an association long enough to bar a potential cause of action which the unit owners might otherwise have been able and willing to pursue. To this end, the statute provides that an association's cause of action does not accrue until the unit owners have acquired control over the association.

Personal parking

Question: In the center of our parking lot the developer erected a carport and sold those 20 spaces _ described in our declaration of condominium as limited common elements _ to owners for money over and above the cost of their units.

We have a 70-unit building; consequently, all other owners were assigned uncovered parking spaces.

Must all the owners contribute to the expense of up-keep and insurance for this carport? _ J. A.

Answer: Common elements are defined as those portions of the condominium property which are not included in the units, such as the roof, hallways, stairways, lobby, recreation areas, etc.

Limited common elements are those portions of the common elements which are reserved for the exclusive use of certain designated unit owners, as specified in the declaration of condominium.

In many instances the developer, for an additional consideration, granted the exclusive use of certain parking spaces in carports or basement garages to designated unit owners and described those spaces as limited common elements.

Section 718.113 of the Condominium Act states the declaration may provide that the limited common elements shall be maintained by those entitled to their use. If the declaration does not have such a provision, in my opinion, the cost of maintaining the limited common elements is a common expense which must be borne by all the unit owners.

Harry Wood, a retired lawyer, is a consultant on condominium management. Address questions to: Harry Wood in care of At Home, the Times, P.O. Box 1121, St. Petersburg, FL 33731-1121. Questions of general interest will be answered in the column. Because of the volume of mail, personal answers to questions are impossible.

The State of Florida also has staff to answer questions about condominium law. Write to Liz Cloud, Department of State, Bureau of Administrative Code, Room 2002, the Capitol, Tallahassee, FL 32399-0250.

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