By Ryan D. Poliakoff, Esq. / Published March 2016
Q.I just moved from a condominium in Boca Raton where I lived for 12 years. When we first moved in, anyone moving in or out was asked for a security deposit in case the elevators were damaged during the move. The elevator was always padded for the move (as it frankly is on many days), and there was rarely any damage. In fact, the deposit checks were usually not even cashed, but everyone gave a deposit to ensure compliance. About a year or so ago, the board changed the rule, and established a fee of $450 for anyone moving in or out of the community.
This new fee (along with many others) was added without there ever being a vote of the members of the association. Of course, in order to reserve the date of our move, we needed to sign an agreement and accompany that agreement with a check. We did not receive exclusive use of the elevator or any special treatment during our move.
When I questioned the fee after the move, I was sent my signed authorization as proof that I agreed to the charge (which of course I did, but I had no option to refuse. If I had refused they wouldn’t have allowed my mover on the property). So the question is, was this legal?
A. The Condominium Act, at 718.111(4), states that, while the association has the power to make and collect assessments, it may not charge a “use fee” against a unit owner for the use of the common elements unless the declaration of condominium provides for such fee, or unless approved by a majority vote of the association; or, unless, as you have suggested, the fee relates to the “exclusive use” of a common element or association property. Typically, a condominium would couch a move-in/move-out fee as a fee for the exclusive use of an elevator. Of course, the association would have to actually allow you that exclusive use. So, based on your description, I do not think that the fee is legal, unless there is some very broad language in your declaration allowing the board to create and apply fees.
As for the authorization they made you sign, that does not justify the fee, either. The association cannot bind you by making you sign a document that references a fee that they have no right to charge in the first place, later pointing to that acknowledgement as a legal justification for having charged the fee. The problem, of course, is that challenging this fee would require you to sue the association. The Division of Condominiums does not have the authority to investigate a fee dispute, and fee disputes are not subject to arbitration. And, if you were to lose your lawsuit, you may be responsible to pay the association’s legal fees. It doesn’t seem worth the fight over $450.
Q. I have lived in a condominium complex in Jupiter for five years. I was under the impression that it was a state law that the board must get three bids on certain projects, and that the bids should be made available to the residents. I have requested to see these bids, and I have gotten the run-around from the association.
A. You are really asking two questions—when is a condominium obligated to obtain bids, and, if it does, are those bids open to inspection?
As to the first question, the Condominium Act, at Section 718.3026, Fla. Stat., provides that, where a contract for the purchase, lease, or renting of materials or equipment, or for the provision of services, requires payment of more than five percent of the total annual budget (including reserves), the association must obtain competitive bids. The law does not say how many bids are required, and the association is not required to choose the lowest bidder.
Also, there are numerous exceptions. Contracts with association employees, attorneys, accountants, architects, community association managers, timeshare management firms, engineers, and landscape architects are not subject to these competitive bidding requirements. This is also true if the company the association hires is the only source of that good or service in the county where the association is located. The HOA Act has a very similar provision, but unlike the Condominium Act it only requires bids if the project exceeds ten percent of the budget.
Now, if the association was required to obtain competitive bids, it would be obligated to let you inspect those bids. Section 718.111(12) expressly states that bids for work to be performed are considered official records, and the official records, with only a few exceptions, must be made available for inspection upon written request by a member of the association or his or her representative.
Ryan D. Poliakoff, Esq.
Partner of 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 the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is 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 firstname.lastname@example.org. For more information about his firm, visit www.bapflaw.com.