Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Our condominium has been condemned because of structural damage that, to quote the receiver, “go[es] back to the original construction of the buildings, but that was not known until we did our in-depth investigation since my appointment.”
I am at a loss as to how this building inspection was passed when I wanted to put up hurricane shutters and was required to get a permit and inspection done. The residents are required to vacate with only a month’s notice. Signed, D.M.
Dear D.M.,
I’m sorry to hear that you are going through this. The inspection that you had when you put up hurricane shutters had nothing to do with the issues that are now being discovered in your building. That inspection was simply to verify that your shutters were installed properly, and not that the entire building was sound.
Florida’s legislature has mandated that all condominium and cooperative buildings that are three stories or more in height must conduct a milestone inspection. This is a structural inspection of the building to determine whether it is safe to live in. A number of these inspections have uncovered serious structural issues that compromise the safety of the building and that have resulted in buildings being evacuated.
As you know, these laws were passed in response to the Surfside tragedy (when a condominium tower collapsed due to structural defects), and so it was anticipated that the program would uncover some buildings that needed to be shut down. The bigger question is how your building got to this point, and why, if some defects go back to the original construction, they were not uncovered at that time.
My best guess is that you live in an older property, and the post-development investigations that were done 40 or 50 years ago were less thorough than those conducted today. And, if you are like many older buildings where the residents have aged in place, your boards may not have committed themselves to spending the millions of dollars that would have been required over the years to not only properly maintain the building structure, but also that might have uncovered these defects before they became catastrophic.
Has your building waived collecting reserve funds for its entire history? When your board suggested from time to time that the concrete needed to be restored, or that the building needed to be inspected, did owners scream at the board that they couldn’t afford the expense, and that the building was just fine as it was?
I see these kinds of arguments regularly, and these are some of the things that may have led you to where you are today. I have heard owners attack boards for spending money on necessary maintenance, arguing that the building was constructed so well that the repairs were a waste of time, and that the building was designed to last 100 years.
The hostility expressed towards maintaining and repairing condominiums is significant, and boards are placed in an extremely tough situation.
The legislature has now changed that equation by mandating the collection of most reserves and imposing inspection and repair requirements — though as you have found those mandates come too late for some properties.
Late on your HOA fees, can they cut off your internet, cable?
Question: Our HOA fees include internet and cable. If residents fall behind on their HOA payments, does the board have the ability to turn off their internet and cable until their account is current? Would this depend on the amount of time they have been delinquent? Signed, E.V.
Dear E.V.,
The HOA Act, like the Condominium and Cooperative Acts, provides that if an owner is more than 90 days delinquent, the association may suspend their right (and the right of their tenants, guests, or invitees) to use “common areas and facilities” until the monetary obligation is paid in full. However, it also says “this subsection does not apply to that portion of common areas used to provide access or utility services to the parcel.”
So, the question becomes, is internet or cable a “utility” such that you can’t suspend access?
The statute never defines the term, so it’s not clear. You can imagine that the legislature wanted to prevent HOAs from effectively evicting people from their homes by turning off their electricity or water — but people can certainly live without cable TV or internet (particularly with advances in smartphones and cellular networks).
I can tell you that, while this remains an open question as far as I’m aware, many of my clients do shut off cable and internet pursuant to these sections, and I have never faced a legal challenge as a result. The bigger barrier is that not every cable company is willing to play ball and shut off access, because they make money off all the additional services the owner may be paying for (such as faster internet, additional channels or pay per view content).
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Legal expert on Palm Beach County condo condemnation, eviction notice
