Countless Interesting Questions and Answers

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Countless Interesting Questions and Answers

By Dania S. Fernandez, Esq. / Published November 2019

Photo by iStockphoto.com/andriano_cz

Over the past 19 years of representing community associations large and small across Florida, Dania S. Fernandez, Esq., has received countless interesting questions, and she shares some of the most common questions and answers here.

Can a member of the board of directors abstain from voting?

     Members of a condominium association’s board of directors are permitted to abstain from voting without stating a reason, even when there is no conflict of interest. His/her abstention must be noted in the meeting minutes. According to Florida Statute §718.111(1)(b), a director of the association who is present at a meeting of its board at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless he or she votes against such action or abstains from voting. It further states that a director who abstains from voting on any action taken shall be presumed to have taken no position with regard to the action. 

     Directors are elected by the members and have a fiduciary duty to take a stand on matters affecting the association and its members. It is my opinion that a director who consistently abstains his/her vote is not acting within his role as a director.  Members elected directors to act and to make decisions in the best interest of the community. A wiser course of action would be for a director to table the item being addressed to allow more time to research and ultimately make a wise decision. 

When can an association charge a transfer fee?

     The association can only charge a transfer fee if their governing documents provide the right to do so. According to §718.112(2)(i) of the Condominium Act, no charge shall be made by the association or anybody thereof in connection with the sale, mortgage lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. 

     Additionally, the Condominium Act also provides a cap of $100 per applicant, and a husband/wife or parent/dependent child is considered one applicant. In order for an association to charge any fee which includes a background check, the governing documents must provide the authority to do so. Put simply: no authority, no charge. 

Can an association charge a proposed tenant a security deposit?

    A variation on the above question. According to §718.112(2)(i) of the Condominium Act, “ if the authority to do so appears in the declaration or bylaws, require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of one month’s rent, into an escrow account maintained by the association.” Again, if the declaration does not provide the authority to collect a security deposit, then a deposit cannot be collected.

Can an association amend the Declaration to include the right to charge a transfer fee and collect a security deposit?

     Yes. The Declaration of Condominium may provide what will be required for its community for an amendment.  In the event the Declaration is silent as to amendments, Florida Statute §718.111 of the Condominium Act provides that the owners of not less than two-thirds of the units may approve an amendment to the Declaration. I have recently found many associations amending the declaration to control the number of leased units, the right to approve and deny tenants, and to exercise their authority to collect a transfer fee and security deposit. I strongly suggest a consultation with the association attorney as to the language and presentation of the amendment to the community for a successful approval.   

I was recently fined for a parking violation. I received the violation notice and attended the fining committee hearing; however, I was not given the opportunity to speak. Is this legal?

     An owner cannot be fined without first being given the opportunity to be heard. Before a fine is issued, the following must take place:

  • Association/management identifies the violation.
  • Notice of violation sent to owner/resident via a hand delivery or certified mail. 
  • Notice must contain the following:
    • Description of the violation
    • Authority in governing documents to cite the issue as a violation.
    • A picture may also be included in the notice.
    • The required timeframe to correct the violation.
    • Disclosure of his/her 14-day right to be heard before the fining/grievance committee.
    • Alert fining committee of the violation sent and schedule a hearing.
    • Attend hearing and be prepared to listen to the owner’s stated defenses and/or explanation.
    • Send notice of final decision to owner/resident.

     In this situation, it would seem that the association skipped or ignored the legal right of an owner to be heard before a fine is issued. The fine is not a legally imposed fine unless the above steps are taken.

Dania S. Fernandez

Owner, Dania S. Fernandez & Associates PA

Dania S. Fernandez was born and raised in Miami, Florida. Before earning her law degree at Nova Southeastern University, she was an educator for special needs children. Her constant drive and willingness to help all those around her has been her key to success. She has built her practice by educating her clients and filling the needs of the Hispanic community of South Florida. Her drive to reach her goals is like no other, and she plans to continue guiding and helping communities for years to come.