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© St. Petersburg Times, published October 5, 2002
Question: A unit in our condo is for sale. There is a strong possibility that before the year ends we will have to levy a special assessment of $200 to $400. Is the board obliged to inform the current owner of this, or will the expense be the responsibility of the new owner?
Answer: The Condominium Act requires that the association provide prospective buyers with a question and answer sheet. It must first be prepared by an attorney but subsequently can be updated by the board. It must be updated every six months or whenever something changes within that six months. It is in everyone's interest to make full disclosure.
Question: Can you define some legal terms for me? I haven't been able to find definitions in law books. The terms are "laches" and "waivers."
Answer: Board members should understand that when they attempt to enforce rules, the alleged violator can defend against the enforcement by using four defenses. They are laches, selective enforcement, waiver and estoppel. Here are the definitions, from the Law Dictionary.
Laches: Long-neglected rights that are sought to be enforced. Example: An owner installs a fence without approval and three years pass before the board attempts to have the owner remove the fence to comply with the no-fence restriction.
Selective enforcement: Failure to enforce rights against all similar circumstances. Example: Two owners install fences, but the board takes action against only one.
Waiver: An intentional and voluntary giving up, relinquishing or surrender of some known right. Example: The board grants permission to an owner to install a fence when the rules say no fences.
Estoppel: The prohibition of further action by parties who have previously litigated or agreed to the issue. Example: When a property is sold, the association sends the closing agent an estoppel letter, a written report on the status of the fee accounts of the seller. Has the seller paid all monthly assessments, fines, special assessments? Once this letter has been issued, the association cannot go to the new owner later and try to force him to pay debts of the previous owner that were not specified in the estoppel letter.
To prevent the use of these defenses, the board must enforce the rules promptly, uniformly and consistently. As the old saying goes, "You snooze, you lose." If you do not use the rules, you will lose the right to enforce them.
Question: We do not permit smoking in the clubhouse of our homeowners association. Those who want to smoke have to step outside. A resident has demanded that smoking be banned on the porch, at the pool and on the shuffleboard courts. These are all outdoors, with no walls and no screens. It has been suggested that we put this to a membership vote. Can smoking be banned in all common areas, even those that are outside?
Answer: Florida Statute FS 386 addresses indoor smoking. You are correct that you may have a problem enforcing a rule to restrict smoking outdoors. Maybe you can implement volunteer guidelines for smokers. In your pool area, ask them to smoke in one section of the deck. Ask them not to smoke during shuffleboard tournaments. Invite the smokers to help draft the guidelines. Make them aware of the problems some owners have with secondhand smoke.
- Write to Richard White, c/o Community Living, St. Petersburg Times, P.O. Box 1121, St. Petersburg, FL 33731. Sorry, he can't take phone calls or provide personal replies by mail, but you can e-mail him at CAMquestions@att.net. Please include your name and city. Questions should concern association operations; legal opinions cannot be offered. For specific legal advice, contact an association attorney.
Readers may call the state Division of Condominiums Bureau of Customer Service at toll-free 1-800-226-9101 with questions or requests for materials. Access the Web site at www.state.fl.us/dbpr/lsc/index.shtml; or write to Bureau of Customer Service, 1940 N Monroe St., Northwood Centre, Tallahassee, FL 32399-1032.
Please note that this office provides no information about homeowners associations. The state has no bureau or department covering those associations.