By Ryan D. Poliakoff / Published August 2020
Last year we had an assessment in the building to install fire alarms inside the units. The assessment was divided between all the unit owners according to the square footage. I paid four installments of $292 each, for a total amount of $1168.
After I finished paying what I was supposed to pay according to the assessment, the manager of my HOA presented me with another bill in the amount of $400! This money was outside the special assessment that was adopted and passed. There was no special unit owners’ meeting for this additional money, and it was issued right after I finished paying my assessment. My question is, if the alarm company miscalculated their original estimate (probably to underbid the job), why should I have to pay for their mistake? I feel it’s not right to bill me outside of the original assessment. And, how did the manager come up with this number of $400? This is way over the original assessment for my unit of only 1200 sq.ft.
There are a few different issues we need to evaluate in your letter. Whether and how a condominium board has the authority to pass a special assessment depends on the language in the governing documents, usually the declaration of condominium or the bylaws. It will describe whether special assessments can be passed, and in what circumstances, and also whether such assessments will require membership approval.
Section 718.112 of the Condominium Act provides that notice of any meeting at which a nonemergency special assessment will be considered must be provided by mail and posted at least 14 days in advance of the meeting. The notice of the meeting must specifically state that assessments will be considered and provide the estimated cost and description of the purpose of such assessment. Any monies collected for the assessment must be used for that stated purpose, or else returned to the unit owners or allocated to a future assessment (whether your general assessments or a future special assessment).
In your question you mention a “special unit owners’ meeting,” but it’s not clear if that’s because such a meeting was held with respect to the first assessment, or if it was simply a board meeting, and you are saying there was not a second board meeting relating to the new assessment. Either way, I cannot think of a way that the association can simply charge you another amount unrelated to the first special assessment without either amending the first assessment or promulgating a new assessment. And, either way, the procedure for doing so would be the same as the first, with the proper meeting notice. Further, if assessments in your property are done according to square footage, as you suggest, the $400 charge would also need to be calculated according to square footage.
Of course, it’s also possible that you misunderstood the original assessment, or that it was in fact amended at a meeting, and you simply did not see the notice. I can’t tell if you’ve asked the manager and board these questions, but I would find out what the $400 represents, at what meeting the assessment was passed, how that meeting was noticed, and the purpose of the assessment; and then you can evaluate further with an attorney if needed.
My condominium association has employed a unit owner who has no license or insurance. I have brought this to their attention, but nothing changes, and I am concerned about liability if he gets injured on the job. Would all condominium owners be responsible if he sues the association? Would I be protected, since I alerted the board?
You don’t specify the type of work that this owner is doing for the association. For example, if he is simply doing data entry for the association and would not otherwise require a management license, I am not particularly concerned. If instead the association hired this person to do maintenance work, it’s more problematic. Is the person working as an independent contractor? Or is he, in fact, an employee of the association? Either way, there is no question that if the association is handling this very casually, with no written agreement establishing the relationship between the parties, there is some risk involved.
As a concerned owner, I would want to know whether the association carries insurance, and if so, what types. Does the association carry workers’ compensation for its employees (even if it is exempt from that requirement)? And, what kinds of volunteers or employees are covered by that insurance, as well as the association’s general liability insurance? These are important questions for the board to review with the association’s agent. Being properly insured is your best defense against liability.
Condominium unit owners do have some personal liability risk through the association. If a judgment is entered against the association, the unit owners will need to be assessed to cover that judgment. The Condominium Act does provide some protections to owners. Section 718.119, Fla. Stat., provides that the “owner of a unit may be personally liable for the acts or omissions of the association in relation to the use of the common elements, but only to the extent of his or her pro rata share of that liability in the same percentage as his or her interest in the common elements, and then in no case shall that liability exceed the value of his or her unit.” Still, that could be a very significant amount. The statute also provides that in any legal action where the association may be exposed to liability in excess of its insurance coverage the association must give notice to owners, and they have a right to intervene in the case and defend the lawsuit. Still, you don’t want to get to that point. I would continue to encourage your board to ask its legal and insurance professionals about the employment arrangement and make sure they are properly protected.
Ryan D. Poliakoff
Partner, Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is a board certified specialist in Condominium and Planned Development Law and the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. He is also a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at email@example.com. For more information about his firm, visit www.bapflaw.com.