Condominium obligated to collect roof reserves
Support local journalism by subscribing here: Special Offers - USATodayNetwork.
Dear Poliakoffs,
I have lived in my condo since 2006. In 2017 my monthly dues began including an extra fee for a roof assessment. When I asked what this fee was, several association members simply told me that every owner needs to pay this, and that it’s a common expense. Is this really a common expense, and why is it just appearing after 11 years of living here?
Signed, R.B.
Dear R.B.,
First, as I have discussed in previous columns, a condominium is a system of ownership where each unit owner also jointly and severally owns the common elements—such as the walls and structure of the building. That ownership interest is attached to each unit and cannot be removed from that unit. The condominium association, as the corporation that manages the condominium, is responsible to maintain these common elements, and the costs of such maintenance are generally a common expense to be paid by the owners, in the percentages described in the declaration of condominium.
In most condominiums, the roof is a common element that is to be maintained by the association (the only way to verify this for sure is through the declaration of condominium, but it’s extremely likely that’s the case). The money for such maintenance must come from the unit owners.
Separately, every condominium is obligated to collect mandatory reserves each year to pay for deferred maintenance on certain elements of the property, including the roof.
So, several things could be happening with this “roof assessment.” It could be that the association has always waived collection of reserves (which would need to be approved by a membership vote); but in 2017 the board decided that it needed to at least collect reserves for the roof, and so it started doing so. Or this could be an additional voluntary reserve to help the association catch up for a failure to collect roof reserves in the past. Finally, it could be that the association took out a loan to pay for roof repairs (that would be typical if it in fact had been waiving reserves over the years), and the assessment was required to pay down the loan.
The Condominium Act provides that a condominium association is obligated to respond to a written inquiry sent to the board by certified mail. I would recommend that you send your board such an inquiry, asking about the nature of the “roof assessment,” whether the reserves are being funded and, if so, why a roof assessment was needed. They will be obligated to give you a substantive answer.
Dear Poliakoffs,
We were recently fined $800 by our HOA for not cleaning our roof. We were noticed by letter giving us 14 days to cure the issue. We replied to the letter through counsel within two days and have communicated with the HOA and management. We are replacing our roof due to Hurricane Irma and our attorney has asked us not to allow anyone on the roof in order to protect our insurance claim. We informed the HOA that the roof would be cleaned in late 2022. Regardless, we were fined $100 per day for eight days. We were not given a hearing and we can’t determine whether an independent committee was formed. Do we have grounds for dismissal?
Signed, E.G.
Dear E.G.,
The HOA Act, at Section 720.305, provides that an association may levy reasonable fines that do not exceed $100 per violation or $1,000 in the aggregate for a continuing violation, unless the governing documents provide for higher or lower fines. Your fines do not exceed either threshold. However, before a fine is imposed the association is obligated to provide you with 14 days’ notice of the fine and an opportunity to be heard by an independent committee, which committee may approve or reject the fine. From your letter, it appears that the association may have provided you with notice of the fine; but that it did not provide you with the opportunity for a hearing. I would look very carefully at that 14-day letter to see what it says. Does it say you have 14 days to cure or to request an independent hearing? Or is it strictly related to curing the violation itself, and does it not even mention the fine?
If you literally did not receive both 14 days’ notice of the fine and an opportunity for a hearing, then the fine was improperly applied. Realistically though, the only way to challenge the fine is to sue the association. Now, a fine of less than $1,000 is not subject to collection by lien and foreclosure, so the only way for the HOA to collect the fine would be to sue you, which is unlikely. However, once you are 90 days delinquent in paying the fine the HOA can suspend your rights to use the common areas or to vote, which may have a substantial impact. If that happens, your only choice would be to sue the association to challenge the improperly applied fine.
Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. 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.
Support local journalism by subscribing here: Special Offers - USATodayNetwork.
This article originally appeared on Florida Today: Poliakoff: Condominium obligated to collect roof reserves
