V. Condominium Common Elements & Common Expenses

Maintenance

92. What is considered a common element?
93. I have black mold growing on the walls of my condominium. It is even under my carpet. The board said it is not their responsibility. Isn’t the association supposed to take care of things like this?

Right of Use

94. As a renter, do I have the same rights in using the common elements as a unit owner?
95. Can the board keep me as a unit owner from using the common elements if I have rented my unit?
96. Can the board charge unit owners to use the common elements?
97. Does the board have the authority to charge a unit owner for use of the clubhouse or swimming pool?
98. Does the board have the authority to prohibit the use of alcoholic beverages in and around the common elements?
99. Does the board have the authority to set pool hours?
100. Our board has proposed that three-bedroom unit owners should pay a higher monthly fee than owners of two-bedroom units. Does the board have such authority?

Material Alterations/Additions

101. Does the board have the authority to make me remove a screen porch that I had built?

Bids

102. Does a board have to hire the company that prepares the lowest bid?
103. I was told that we must obtain competitive bids if the cost of repairs to the common elements exceeds 5 percent of the total annual budget. Is this correct?
104. Our board is in the process of hiring an attorney to represent us. One unit owner insists that we are required to obtain competitive bids before hiring a lawyer. Is this unit owner correct?
105. A unit owner has taken it upon himself to solicit bids for repairs to the common elements. I was under the impression that a unit owner does not have the authority to act on behalf of the association. Am I correct?

Hurricane Shutters/Cable TV/ U.S. Flag

106. Can a board install hurricane shutters on the common elements if some unit owners are opposed to it?
107. The board has informed me that the cost of cable television service is a common expense. I feel that it is unfair to have to pay for a service that I don’t use. Can I be forced to pay for this service?
108. Does the board have the right to enter a unit in order to make sure that the hurricane shutters are properly secured?
109. Am I allowed to display an U.S. flag on the balcony of my unit?


92. What is a common element? The portions of the condominium property not included in the units.

93. I have black mold growing on the walls of my condominium. It is even under my carpet. The board said it is not their responsibility. Isn’t the association supposed to take care of things like this? Chapters 718 and 719, Florida Statutes, do not specifically address mold. Condominium associations are responsible for the maintenance, repair, and replacement of the common elements of the association and the unit owners are required to maintain their units unless otherwise provided for by the documents of the association. Condominium and cooperative associations expend assessment funds for the operation, maintenance and protection of the common elements or cooperative property. One may review the documents of the association or seek legal counsel to determine your association’s responsibility for correcting a mold problem at the condominium.

94. As a renter, do I have the same rights in using the common elements as a unit owner? When a unit is leased, the tenant shall have all use rights of the association property and common elements that otherwise would be available for use by unit owners. The association may adopt rules to prohibit duel usage by the unit owner and the tenant.

95. Can the board keep me, as a unit owner, from using the common elements if I have rented my unit? When a unit is leased, the tenant shall have all of the use rights of the association property and common elements that are available for use generally by unit owners. Under such circumstances, the unit owner shall not have such rights except as a guest, unless the tenant waives such rights in writing. The association shall have the right to adopt rules to prohibit dual usage by a unit owner and a tenant of association property and common elements.

96. Can the board charge unit owners to use the common elements? The association may not charge a use fee against a unit owner for the use of the common elements or association property unless otherwise provided for in the association documents or by a majority vote of the association or unless the charges relate to expenses incurred by an owner having exclusive use of the common elements or association property.

97. Does the board have the authority to charge a unit owner for use of the clubhouse or swimming pool? The association may not charge a use fee against a unit owner for the use of common elements or areas or association property unless otherwise provided for in the association documents or by a majority vote of the association or unless the charges relate to expenses incurred by an owner having exclusive use of the common elements or areas or association property.
98. Does the board have the authority to prohibit the use of alcoholic beverages in and around the common elements? The entity responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such facilities.

99. Does the board have the authority to set pool hours? The entity responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such facilities.

100. Our board has proposed that three-bedroom unit owners should pay a higher monthly fee than owners of two-bedroom units. Does the board have such authority? Funds for payment of the common expenses of a condominium or a cooperative shall be collected by assessments against the units in the condominium or cooperative in the proportions or percentages provided in that condominium’s declaration or cooperative’s documents. Unless otherwise provided for in the original condominium’s declaration or cooperative’s documents, no amendment may change the proportion or percentage by which the owner of the unit shares the common expenses unless the owner of the unit and all the owners of liens on it approve the amendment and unless all the owners of all other units approve the amendment.

101. Does the board have the authority to make me remove a screen porch that I had built? Chapters 718 or 719, Florida Statutes, do not address the removal of a screen porch. One may review the documents of the association or seek legal counsel or remedy through the courts. However, Chapters 718 and 719, Florida Statutes, provide that there shall be no material alteration or substantial additions to the common elements or to real property that is association property, except in a manner provided in the documents. In a condominium, if the declaration does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. For a cooperative, unless a lower number is provided in the cooperative documents or unless such action is expressly prohibited by the articles of incorporation or bylaws of the cooperative, material alterations or substantial additions to such property by the association shall not be deemed to constitute a material alteration or modification of the appurtenances to the unit if such action is approved by two-thirds of the total voting interests of the cooperative.

102. Does a board have to hire the company that prepares the lowest bid? The association is not required to accept the lowest bid.

103. I was told that we must obtain competitive bids if the cost of repairs to the common elements exceeds 5 percent of the total annual budget. Is this correct? If a contract for the purchase, lease, or renting of materials or equipment or for services requires payment exceeding 5 percent of the total annual budget of the association, the association must obtain competitive bids. However, contracts for attorney, accountant, architect, community association manager, timeshare management firm, engineering, and landscape architect services are not subject to the above. Further, associations with less than 100 units may opt out of the bid requirements if two-thirds of the unit owners vote to do so.

104. Our board is in the process of hiring an attorney to represent us. One unit owner insists that we are required to obtain competitive bids before hiring a lawyer. Is this unit owner correct? A board is not required to obtain competitive bids when hiring an attorney. Competitive bids are not required for contracts with employees of the association, attorney, accountant, architect, community association manager, timeshare management firm, engineering and landscape architect services.

105. A unit owner has taken it upon himself to solicit bids for repairs to the common elements. I was under the impression that a unit owner does not have the authority to act on behalf of the association. Am I correct? A unit owner does not have any authority to act for the association by reason of being a unit owner.

106. Can a board install hurricane shutters on the common elements if some unit owners are opposed to it? The condominium board, upon approval by a majority of the voting interests in the condominium, may install hurricane shutters and may maintain, repair, or replace the shutters whether on or within the common elements, limited common elements, units, or association property.

107. The board has informed me that the cost of cable television service is a common expense. I feel that it is unfair to have to pay for a service that I don’t use. Can I be forced to pay for this service? If provided for in the condominium declaration or cooperative bylaws or by a contract entered into by the board, the cost of a master antenna television system or duly franchised cable television service shall be deemed a common expense. The cost of the service is allocated on a per-unit basis rather than a percentage bases even if the association documents provide for other than equal sharing of common expenses. Any hearing-impaired or legally blind unit owner who does not occupy the unit with a non-hearing-impaired or sighted person, and additionally, for condominiums, any unit owner receiving supplemental security income under Title XVI of the Social Security Act or food stamps as administered by the Department of Children and Family Services pursuant to Section 414.31, may discontinue the service and shall not be required to pay any common expense charge related to such service. If less than all members of an association, as provided for above, share the expenses of cable television, the expense shall be shared equally by all participating unit owners.

108. Does the board have the right to enter a unit in order to make sure that the hurricane shutters are properly secured? The condominium board may operate hurricane shutters without the permission of the unit owner only where such operation is necessary to preserve and protect the condominium property. Further, the condominium or cooperative association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, and replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration, or as necessary to prevent damage to the common elements or to a unit or units.

109. Am I allowed to display an U.S. flag on the balcony of my unit? Chapter 718 states that a unit owner is allowed to display one portable, removable U.S. flag in a respectful way, regardless of any declaration rules or requirements dealing with flags and decorations.

The above information is from the Florida Department of Business & Professional Regulation and represents general legal advice. Since the law is continually changing, some provisions may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case. Please Contact Us by using the Quick Contact form, calling us at (904) 823-3333 or (386) 366-4848, or by email at info@jacksonlawgroup.com.