by Richard White / Published June 2014
Our condominium board has done an audit of our utility services. We have found errors in their billings. We have communicated our findings to the utility companies without success in correcting and crediting back their billing errors. We forwarded the information to the County commissioners with the hopes that they will force the companies to ensure proper credits. I write you this as a recommendation rather than a question. I wanted to inform all boards to check and verify that they are being billed correctly.
ASometimes your utility companies apply incorrect rates, and sometimes their meters do not read correctly. It is a wise thing to have all billings, not necessarily just utility companies but all vendor services, checked for proper billings. I have found utility rating error was the primary reason for faulty utility billings. I have also found meters that were incorrectly reading the usage. Most utility companies will work with you to confirm that their meters are properly operating, and some will provide a representative to discuss lower rate costs. However, you need to keep in mind that there are two sides to this situation. In one case, the electric company found a meter that had been incorrectly reading the electrical use in the common areas. Unfortunately, it was reading a lower usage of electricity for the common area. Their investigation showed that we were under billed for 10 years. After confirming with the state that they could back bill for the faulty meter readings, we negotiated to pay for only the last two years. At the same time, the electric company made suggestions to make our condominium more energy efficient. In doing so, we reduced our electrical consumption several thousand dollars, which made up for the errors in the meter reading shortages. The short answer to your question is that by verifying the information and making energy reviews and inspections, you can reduce your utility bills.
We live in a 30-unit condominium association. Our board asked us to give them permission to rewrite the condominium documents, and we did give that permission. We were not allowed to vote on the new documents. Do we have the right to ask for a vote on the new documents? If so, what percent of the association is needed to pass the vote? They also deleted the need for a quorum at their meetings. Is this allowed?
AOne of the fundamental determinations in developing a new rule is to be able to enforce the new rule. What were the members thinking when they gave away their rights? I do not believe the members had a right to give the board full control over any modifications to the documents. Therefore, this raises the question can the board enforce the changes? Keeping in mind that the documents determine certain title rights, I am not sure that the members can just say to the board, do anything with my title you want. It appears to me that you now need an attorney to determine if that vote was proper, misleading, or really gave carte blanche rights to the board. If you read my column, you will always find that I recommend when modifying the documents you need an attorney to draft and approve changes by guiding you through the action. As to the percentage of votes needed, that would be determined by the statutes, documents, and what changes you are voting on. As to the quorum for meetings, that is regulated by the statutes and your documents. Since I was not part of this irregularity, I really cannot comment on the board’s powers or if the modifications are legal. For that reason, I would recommend that the board seek legal guidance.
The property manager is eager to replace our 17-year old, concrete tile roof at a cost of $180,000. We have spent $5,000 in each of the last three years repairing leaks. We calculated the roof reserve on the roof lasting 25 years (eight more years). Do you have any experience on cost/benefit on such a major expenditure?
AIt is the board’s decision, not the manager’s, to replace the roof. However, the manager has a duty to recommend to the board when necessary repairs are required. What you need to do is have a qualified roof inspector determine if a new roof is required. The roof replacement should not be determined by your reserves. If the reserves do not have enough money, then past budgeting was incorrectly calculated. Seventeen years for a tile roof seems a little too soon for replacement. However, it could have been incorrectly installed or maybe storm damage from past hurricanes has caused the roof to deteriorate sooner. Your board is responsible to make the decision. They need to seek qualified inspectors and what they recommend. Most managers do not have the necessary qualifications to render a final inspection, but they
can suggest to the board the action required for common areas and the essential repairs or replacements. If required, the board can use the available portion of the reserve for the roof and then pass a special assessment for the remaining balance.
Our HOA board was elected six months ago. They have selected a monthly meeting time but never post an agenda. At the meetings, the board discusses and votes on items and then homeowners get a chance to speak at the end of the meeting. I object to the lack of an agenda and the order in which business is conducted. Do any of the board’s actions violate statutes?
WW, Bonita Springs
AOne of the shortcomings of the homeowner association statutes (FS 720) is that they only require the board to post a meeting notice 48 hours in advance of the meeting. The agenda is not required for this HOA meeting notice. As an owner, you have a right to complain and suggest that the board also include the agenda for the meeting. It is simply good operating procedure. The board should be happy to provide the members with that information in their meeting notice. If they do not include the agenda, it can present an appearance of secret actions. It is best to keep the members informed with good communication procedures. The meeting notice for condominiums requires that an agenda be posted with the meeting notice. I suggest that HOA boards do the same or at least have copies available at the meeting for the members.
Our condominium association has a rule in place requiring all window coverings show white to the outside. This rule was put in place to eliminate the use of flags and such for curtains. The new board president says we do not have the legal right to regulate the color of anything inside the unit. Do we need to remove this rule?
AThis is a document question. The board should review the documents to see if they have any restriction on window coverings. Some condominiums do have the capability to control window coverings, but it must be a right given
in the documents. If the rule you are talking about was a board rule, the board has a right to change this rule enforcement at any time. Board rules and policies can be changed at any meeting or by any future board. Here is a short lesson on how to promulgate rules. There should be a specific need to create a new rule. To make a new rule just because someone thinks that there is a need to pass a rule is not justification to create a new rule. Unnecessary rules create too many complications and result in undue backlash. The first step is to determine if one has the power to create the rule. The second step is to define the problem. Step three is to ascertain if a new rule is necessary. Step four is to determine what results are desired. Step five is to determine if a new rule will conflict with any existing rules or other provisions of the association documents and statutes. The sixth step is to determine if the rule will be reasonable and not arbitrary or capricious. The seventh step is to determine if the rule will be enforceable and what powers will be required to enforce the rule. The last step is to get the members involved; in creating the rule, you must get the members of the community involved in all phases of the rulemaking process. From the information provided, it appears that the board did not have the power to make and enforce this rule. It does not appear to be a problem for the condominium but was a concern of certain board members. If this is true, this was not a valid reason for such a rule.