New Neighborhoods–Clean Title, Common Element Repairs and Virtual Board Members

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Clean Title, Common Element Repairs and Virtual Board Members

Dear Poliakoffs,

I am contemplating buying a condominium unit from a condominium association that acquired title by foreclosing on its lien filed for non-payment of the maintenance assessments.  The realtor advised me that the unit once had a mortgage on it, but the association’s attorney successfully had the trial court extinguish the mortgage due to the unit mortgagee’s failure to timely foreclose on the mortgage that was in default.  If I close on the unit and obtain title insurance, is my title secure?  Signed, D.T.

Dear D.T.,

The situation you described should raise a large warning flag.  In an effort to put pressure on unit mortgagees (the banks) that are not actively pursuing foreclosures on their mortgages that are in default, some attorneys have persuaded trial judges to extinguish the mortgages, conveying title to the association free and clear of the mortgage.  Often referred to as “Mortgage Terminator Lawsuits”, lawyers bringing these actions plead various theories, from mortgage abandonment to quiet title and, often, equitable relief.  The primary problem is that many title insurance companies do not recognize these actions as being valid, and they have advised those who write title insurance on their properties not to do so without expressed written approval of the title insurance company.  While this area of law is still unsettled, Florida’s Supreme Court has provided some evidence that these lawsuits might ultimately be rejected, holding that “safeguarding the validity of such contracts and assuring the right of enforcement thereof, is an obligation of the courts that has constitutional dimensions.”

Based upon our analysis of the direction the courts are going in this area, we would caution readers not to acquire title without title insurance from a recognized, reputable underwriter which, given these facts, may be impossible to obtain.

Dear Poliakoffs,

I love your weekly column and have learned many useful things over the decades.  I live in a small condo association with 65 individual houses.  It’s a unique little community that generally runs well.

Lately, to conserve funds, there has been a “push” by management and the board to assign the burden of common element repairs onto the owners adjacent to the element needing repair.     One of the reasons I purchased a condo is because it relieved me, as an individual owner, of responsibility to repair common elements.  The cost is not the issue, but whether individual condo owners can be forced to repair pre-existing conditions and defects.  Our docs do not address this issue beyond the usual legal description of common elements and the association’s fiscal responsibility for the same (supported by the monthly condo fees & special assessments).

Am I responsible to bear these types of repairs personally?  Signed, O.S.

Dear O.S.,

No. Individual unit owners are not responsible for repairing the common elements.  In fact, the Florida Condominium Act expressly states that, “a unit owner does not have the authority to act for the association by reason of being a unit owner.”  The Condominium Act imposes the burden for maintaining the common elements on the association, which in turn prorates the cost among the unit owners as assessments based upon each unit owners share of ownership as stated in the declaration of condominium. The only exception to this law is the case of limited common elements; that is, common elements which are reserved for the exclusive use of one or more owners, and then only if the declaration imposes the obligation on those owners.

Dear Poliakoffs,

Three of our newly elected board members have purchased other properties and are in the process of moving from here to other communities. They are not selling their condos in our community. Do board members have to live on premises, especially the president, to be able to keep their position on the board?  Signed, J.B.

Dear J.B.,

None of the shared ownership acts (condominium, co-operative, or HOA) require a unit owner to live in the community as a condition of their qualifying to run for the board; and, if elected, serving.  It is quite common in South Florida, especially with the large volume of snowbirds, for board members to live in other communities, and even in other states.  The Act even allows board members to attend meetings virtually through teleconferencing.

Gary A. Poliakoff and Ryan Poliakoff are co-authors of New NeighborhoodsThe Consumers Guide to Condominium, Co-Op and HOA Living.  Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is a senior counsel at Sachs Sax Caplan, P.L.  Email questions to condocolumn@gmail.com.  Please be sure to include your hometown.

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