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Q & A

Q & A

If permission is granted by one Board member, is the Association legally stopped from enforcing its governing documents?

In Curci Village Condominium Association, Inc. v. Santa Maria, 14 So. 3d 1175 (Fla. 4th DCA, June 17, 2009), an Owner in a homeowners association verbally asked the Association’s president for permission to install decorative improvements in her backyard.  The president stated that he “didn’t see a problem with it,” and the owner then installed the improvements without applying for or receiving written approval from the Association, as was required under the Declaration.  The court ruled that the Association was not prohibited from seeking enforcement of the Declaration.  The owner could not reasonably or justifiably rely on the president’s statement, which was merely a verbal opinion from one member of a three member Board.

Who insures unit owner improvements to limited common element areas?

In Costa Del Sol Association, Inc. v. State of Florida, 987 So. 2d 734 (Fla. 3rd DCA, July 2, 2008), the court held that despite Section 718.111(11)(f) of the Florida Statutes, which provides that Associations must insure all alterations or additions to the condominium property or association property which are made pursuant to Section 718.113(2) [i.e. received required approval], the condominium association is not responsible for insuring items such as jacuzzis, trellises, and elaborate screen enclosures purchased, installed and used only by the individual unit owners.  Specifically, the court stated that to hold otherwise would be “utterly unfair … making members of the association responsible for insuring property which they do not and cannot use, and from which they derive no benefit-indeed, in which they apparently have no insurable interest which would even permit their maintenance of valid insurance.”

Can Bulk Cable contracts entered by the Developer be cancelled by the Association after turnover?

Although it has long been commonly understood, Comcast of Florida, L.P., v. L’Ambiance Beach Condominium Association, Inc., 17 So. 3d 839 (Fla. 4th DCA, August 26, 2009), is the first Florida Appellate Court case to confirm that bulk cable contracts entered while a condominium association is under developer control may be terminated by the Association following turnover pursuant to Section 718.302 of the Florida Statutes.  That section allows for cancellation of contracts for the “operation, maintenance, repair, replacement or protection of the common elements and association property” if the cancellation is approved by at least 75 percent of the voting interests other than the voting interests owned by the developer.  The court reasoned:

“Comcast installed wires and lock boxes to provide cable television services to all the unit owners. By virtue of the Agreement, Comcast operated and maintained the system that it installed. Further, (the statute) provides that the cost of cable television service obtained pursuant to a bulk rate contract is deemed a common expense. (The statute) specifically provides that common expenses include the expenses of the operation, maintenance, repair, replacement or protection of the common elements and association property . . . “