New Neighborhoods–Parking Rules, Non-Owner Boards and Multi-Condominium Funds

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Parking Rules, Non-Owner Boards and Multi-Condominium Funds

Dear Poliakoffs,

We live in a 135-townhouse HOA development.  Since the development opened, there has been one nine-space parking lot used for overflow parking for residents and tenants.  Recently, the HOA declared this lot can only be used for “guest parking”.  Others are subject to towing.  No guidelines were ever published, and some guests have been ticketed.  In one case, the security guard and a guest nearly came to blows because the guard did not believe that the person was a guest since the car had been in the parking area a “long time”.  Nothing in the original documents designate this lot as being for guests only.  Can the HOA declare what was once a common area off limits to residents and tenants?  If so, can the residents be compelled to pay for an area for which they do not have access?  Is there an option to appeal to local or state agencies? Signed, A.K.

Dear A.K.,

It is within the board’s discretion, absent a provision in the covenants, conditions and restrictions to the contrary, to pass reasonable rules and regulations governing the common areas; that would include a parking lot.  The truth is that few communities were designed with sufficient parking spaces to accommodate multiple family cars, handicap parking and parking for guests.  To be honest, assigning nine parking spaces for guest-only use only does not sound particularly unreasonable.  Assuming this is association-owned property, local and state agencies are unlikely to get involved.

Dear Poliakoffs,

Our HOA documents state that a board member must be an owner and resident of the community.  Does “owner” include a spouse if that spouse’s name is not on the deed or tax record?  Does the term resident refer to being a legal Florida resident (homesteader) or just residing in the unit on the property?

If someone is currently serving on a board and does not qualify under the terms of the documents what are the recourses available to the unit owners with regard to removing the person and reversing any actions, contracts, expenditures or other matters that the person authorized in any way while serving in the unauthorized position?  Since all board members signed that they have read and understood the statues and documents would there be any possibility of criminal charges?

We have an election coming up so I would appreciate a reply to these questions as soon as possible.  Thank you for all your past advice and any assistance you can provide now.  Signed, M.O.

Dear M.O.,

In a situation where the governing documents require that a member of the board be an “owner,” the spouse of a record title owner whose name is not on deed would not qualify to serve on the board. If a person is currently serving on the board who is not otherwise qualified, they are deemed to not be a board member; period. They cannot serve, and any action that they take, such as voting, would be deemed null and void. Now, a third party has the right to rely on the legitimacy of an association president being a valid decision-maker in signing contracts—so if the board member was the president, the contracts he or she entered into on behalf of the association would still be enforceable.  Otherwise, those would be unenforceable, as well.

In so far as what constitutes a “resident” where the documents are otherwise silent, it would be a person who’s primary residence is the unit, whether or not they have filed for a homestead exemption. Serving without authority on a board would be a civil, not criminal, violation of the law.

Dear Poliakoffs,

We are a multi-condominium with three buildings and three budgets. Can the operations account monies be commingled with expenses for one condo building that doesn’t have the funds to pay for certain damages? I was under the impression that my condo fee was for my building repairs and my building’s reserve funds. The building in question opted out of the reserves for one year and now doesn’t have the funds needed to do the repairs. I understand that common element expenses are shared, but can a single association in the multi-condominium use funds from the other buildings for their own expenses?  Signed, D.S.

Dear D.S.,

Although the operating funds and reserves of separately declared condominiums operated by a single association (a multi-condominium association) can be commingled into a single account, the association must maintain separate books and records for each condominium it operates, including the reserve funds, and it cannot use the operating funds or reserves of one condominium to pay for expenses of one of the other condominiums. There should be four separate budgets; one for each of the condominiums and one for the shared expenses of the three condominiums. A unit owner of one condominium should not be paying the cost of operation of another of the condominiums.

Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is the Vice President of Management at AKAM On-Site.  Email questions to condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

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