Can condo board shift way it charges insurance bill per owner?

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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: I live in a condominium that has 18 units, all under one roof. There are three different floor plans with different unit sizes.

I requested that we change how we collect assessments for our rising insurance costs by pro-rating them by the square footage of each unit, as now the smaller units are paying the same for insurance coverage as the two larger floor plans. This would obviously change the monthly fees for all the units.

I have checked other associations, and several have pro-rated their insurance costs according to unit size.  My management company representative and the board were very rude. I was told that if we did this, we would have to re-write our bylaws and it would be cost prohibitive. I thought that the association could make amendments to their bylaws, without re-writing them all.

Because of the huge difference in unit sizes, I feel (as do the other small unit owners) that this should be re-addressed considering the extreme high cost of insurance. I understood that we could make amendments by owner vote and then register the changes with the state. Signed, S.B.

Dear S.B.,

What you’re asking the association to do is functionally impossible.

The cost of insurance of the building is a common expense to be borne by the owners in the manner that the general assessments are shared. Yours appear to be shared equally per unit.

Yes, it’s true that governing documents can be amended, usually by unit owner vote — but some types of amendments require the consent of every owner. The Condominium Act says that, “unless otherwise provided in the declaration as originally recorded, no amendment may…change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns the common surplus of the condominium unless the record owner of the unit and all record owners of liens on the unit join in the execution of the amendment and unless all the record owners of all other units in the same condominium approve the amendment.”

Of course, that is never going to happen. So it’s not just that amending your documents to change the way insurance costs are shared would be cost-prohibitive — it’s simply not possible.

Must we pay for a common landscaper when we don’t have landscape?

Question: I live in an HOA with limited common areas. We are all responsible for our own landscaping. Recently the HOA board floated a proposal that is currently in the survey question phase as to whether the entire community should use one landscaping company, to be paid as a common expense. Some of the homeowners, including myself, do not currently use any landscaping service and yet we would be required to pay the fee to the landscaping company whether we allow the company on our property or not (we have no grass or shrubs to take care of). The idea of having one landscaper for everyone is not currently in our bylaws.

As far as I have read, it is not legal for the HOA to prescribe the people you use on your private property to do the landscaping or anything else for that matter. Please, tell me, what is your opinion? Signed, M.K.

Dear M.K.,

The HOA law was amended this year to provide that an HOA cannot prevent a property owner from inviting a contractor onto their parcel simply because they are not on a preferred vendor list, or because they do not have a professional or occupational license. But you are describing a different situation. In your case, the HOA is considering taking on the property maintenance for all the owners itself, charging the cost as a common expense. So, I do not think this statutory provision is relevant.

Instead, I think this comes down to a detailed reading of your governing documents.

You say that your bylaws don’t discuss the idea of having one landscaper, but sometimes the power to take on responsibilities like this can be tucked away in surprising areas. For example, the association may have a right to conduct certain home maintenance responsibilities generally, particularly when maintenance isn’t being performed. Or there could be general language that the HOA has the power to do anything that the board feels is in the best interests of the owners.

There’s nothing statutorily that would permit this, but if the board decides to move forward, I would start by challenging them to explain how they have the power to maintain the lots as a common expense — and if they refuse you might need to hire an attorney to evaluate your covenants for you.

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 [email protected]. Please be sure to include your location.

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