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I am in Florida. My HOA is making a material alteration to

Customer Question
the common area without a...
I am in Florida. My HOA is making a material alteration to the common area without a vote of the 1060 homeowners. Our docs are silent but it appears that 720.304(1) applies for intended use. As well as 720.31 material alteration without a vote
Submitted: 2 years ago.Category: Real Estate Law
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11/15/2015
Real Estate Lawyer: CalAttorney2, Lawyer replied 2 years ago
CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10,244
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
Verified

Dear Customer,

The Board is violating Florida Statutes (not the ones you cite, but rather 718.113(2)(a)). See this article for a very detailed discussion: http://www.floridacondohoalawblog.com/2014/07/articles/covenant-enforcementviolations/arbitration-court-rulings/changes-to-condominium-property-are-highly-scrutinized/

Your board is placing your HOA at risk of a lawsuit, however, if you simply want them to stop and reconsider without raising costs for your HOA further, you can also consider trying mediation - contact your local bar association for referrals to HOA mediators.

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Real Estate Lawyer: CalAttorney2, Lawyer replied 2 years ago

Dear Customer,

I received a reply that you were concerned that this provision did not apply to your particular HOA as it is not a condominium complex.

The rules are different, and the law is significantly more lenient for boards in non-condo complexes.

Here is the best summary I have found: "In an HOA, the law is a little different. The statute says:

  • All common areas and recreational facilities serving any homeowners’ association shall be available to parcel owners in the homeowners’ association served thereby and their invited guests for the use intended for such common areas and recreational facilities.

In other words…..don’t turn the tennis court into a parking lot."

Citing 720.304: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0720/Sections/0720.304.html

What this means for your case is really going to depend on what the Board is trying to do - if they are taking away from the homeowner's right to use the common areas for their intended purpose without a vote, then they are going to be prohibited from doing so (the same advice as above applies), however, if they are only altering the space (adding chairs, changing landscaping, or similar modifications), they are probably acting within their discretion.

However, just because a board has discretion to make certain modifications does not mean that they can do so with impunity. They still must operate within the budget for the HOA (another big ticket issue), and if their spending goes into reserves or requires spending beyond what is allocated for in the budget otherwise (requires special assessments, or takes away from other services or amenities, they may still find themselves in violation of your CC&Rs (again same suggestions for dispute resolution apply).

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Customer reply replied 2 years ago
You did not tell me something I did not know. Please read my original question. I provided the same information that you provided.
Real Estate Lawyer: CalAttorney2, Lawyer replied 2 years ago

Dear Customer,

I am not sure what you want me to tell you. I did see the citation you provided in the question, and I provided the link above to show you where I was getting the quote from.

I tried to assist you with some interpretation of the statute above.

If you want to fight your HOA on this alteration, be careful how you spend your money, I tried to give you the basis for claims that do succeed (major changes that alter the use of the common area, and changes that affect the budget, such as exceeding operating budget or cutting into reserves).

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Customer reply replied 2 years ago
My mistake in not asking the question. Your mistake in not asking what I wanted. I wanted verification that I was correct AND how to proceed in the State of Florida. From your first answer, I am not sure you are familiar enough with Florida HOA law to provide the information.
Real Estate Lawyer: CalAttorney2, Lawyer replied 2 years ago

Dear Customer,

I am going to "opt out" and allow another expert to follow up with you.

Please do not post any further at this time as it will delay the next expert's ability to follow up.

If you need any assistance in the meantime, please contact our customer service at: http://ww2.justanswer.com/help

Thank you for using our forum, and I do wish you the best of luck.

Bill

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Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago
socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 39,498
Experience: Attorney and Real Estate broker -- Retired
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Hello,

I have access to the WestlawNext(tm) legal research system. This is the same costly system used by every court of appeals, supreme court, and every major U.S. law school in the USA. My search of Florida case law shows that neither Section 730.304, nor 730.31 has ever been interpreted by any Florida appellate court. Consequently, your attempt to use the statutes as a means to limit the board from materially altering the association property without a membership vote is entirely ripe for legal dispute.

The better argument in my opinion, derives from the position that homeowners have a reasonable expectation that the common areas of the community will not be altered without a membership vote. However, the real power here is the declaration of covenants. Without reviewing the covenants, I can only guess at the board's powers, however, if you really intend to challenge the board's actions, I believe that you will need support from the covenants in order to do so.

I can review the covenants, but I would have to send you an additional services offer customary legal services fees would apply). Please let me know if you are interested.

If not, then, I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
Wrong statute! Read my post! I am asking for my money back!
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

Sorry, I wrote 730, but I meant 720. That was a typo. All of the research conducted was done with Chapter 720, which is the Homeowners Association Chapter of the Florida Statutes. The answer remains on point and correct.

Note: If you doubt my research, I can print it out and email it to you. There is no Florida case that interprets the sections of the Florida Statutes to which you refer.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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Customer reply replied 2 years ago
If you read my original post, the docs are silent. I'm asking for my money back
Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

Your comment that the docs are silent, assuming that you are correct in your conclusion, does not change the accuracy of my original answer.

Confirmation of the absence of law on an issue is a valuable service -- though, you, like many customers don't see it that way -- because you expect that there must be an answer that validates your personal opinion. In this case, the law is unresolved, and so it does not validate your position. Regardless, you've received a valuable service, because you don't need to spend any further time searching for what does not exist. By contrast, I receive nothing, for my efforts in your behalf.

Regardless, I hope you are able to resolve your difficulties. Thanks for using Justanswer!

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Real Estate Lawyer: socrateaser, Lawyer replied 2 years ago

Your comment that the docs are silent, assuming that you are correct in your conclusion, does not change the accuracy of my original answer.

Confirmation of the absence of law on an issue is a valuable service -- though, you, like many customers don't see it that way -- because you expect that there must be an answer that validates your personal opinion. In this case, the law is unresolved, and so it does not validate your position. You've received a valuable service, because you don't need to spend any further time searching for what does not exist. By contrast, I receive nothing, for my efforts in your behalf.

I hope you are able to resolve your difficulties. Thanks for using Justanswer!

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socrateaser
socrateaser
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