What can owners do as new state rules, insurance costs drive steep condo fee hikes?

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. 

Dear Readers: This week, I wanted to remind everyone that the December 31, 2024 deadline for condominiums to obtain a Structural Integrity Reserve Study, or SIRS, is fast approaching. For any budget passed on or after December 31, 2024, the reserve funds mandated by this required report cannot be waived.

That is going to amount to a huge sticker shock for many owners who have gotten used to waiving their reserves each year. The SIRS includes all of the traditional big-ticket items, and also adds some items that may not have been covered in previous reserve studies. As a practical matter, this means that the bulk of your reserves will no longer be waivable.

I have seen condominiums where this is predicted to add six or even seven figures a year to the overall budget — a huge increase. This, when combined with the gigantic insurance increases everyone has experienced the last two or three years, means that large numbers of condominium owners across the state are going to have tremendous difficulty affording homes that were affordable just a year or two ago.

More:A perfect storm is coming to South Florida as maintenance fees threaten condo owners

Without intervention from the state, many people are going to lose their homes to foreclosure actions as a result. If you live in a condominium, make certain that you pay attention to any planned budgetary increases and ask your board if they have gotten the SIRS yet, or if they have any rough estimates of what the SIRS reserves will add to the budget.

There’s no simple solution here — insurance and SIRS reserves are both statutorily mandated expenditures, so either the budget must go up to accommodate them, or services are going to have to be drastically reduced.

More reasons to prohibit duck feeding and how to quiet a pickleball

Also, I wanted to share some reader comments regarding issues we addressed in previous columns. With respect to rules prohibiting the feeding of ducks, several readers pointed out that Florida Fish and Wildlife Conservation Commission prohibits the feeding of any wildlife. Now, I don’t know if that rule is policed at the level of local duck feeding, but it certainly provides ample justification for a rule prohibiting the same.

Also, we previously discussed an owner who was having trouble with a nearby pickleball court. One reader commented that there is a type of pickleball paddle that greatly reduces the noise made during play, and that some municipalities have required this equipment to be used in some areas. So, perhaps that’s another solution for that reader.

The board wants to sell common property. Do owners get a vote?

Question: Can a board of directors sell off common property without a vote of the homeowners? Signed, W.T.

Dear W.T.,

Condominiums, cooperatives and homeowner’s associations are all structured differently, and those ownership structures greatly affect the answer.

For example, in a condominium, all owners own the common elements together, jointly and severally. Since the entire building is dedicated to condominium ownership and is therefore unit owner property, the declaration would need to be amended to remove the portion of the property from the condominium before it is sold. And, as that ownership interest is appurtenant to the units, an amendment removing that portion of the property from the common elements would modify that appurtenance and, pursuant to Section 718.110, Fla. Stat., require 100% ownership approval.

Now, in the rare circumstance where a condominium association directly owns property (usually property that was acquired after the condominium was declared), that property could potentially be sold depending on the powers granted to the board by the declaration and bylaws; but at the least, selling the property would constitute a material alteration requiring whatever membership approval is described in the declaration; and if the declaration is silent, the approval of 75% of the owners. Condominium property is rarely sold, absent a termination.

In contrast, cooperative and homeowner’s associations typically own the common property directly; and as not-for-profit corporations they have a general right to sell property (although selling all or substantially all of a corporation’s property does require a membership vote). So, any limitations on a sale would need to be found in the governing documents.

There may be limitations on materially altering the common property (and selling a portion of it would certainly qualify), or direct limitations on sale of association property, or perhaps there are use rights to specific areas of the property that are so ingrained in the language of the declaration that selling the property would infringe on these contractual rights. A community association attorney can review the governing documents and provide your association with an opinion as to whether any portion of the property can be sold by the board alone.

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 condocolumn@gmail.com. Please be sure to include your location.