With many of the local condominium and homeowners’ associations clubhouse buildings now reaching 30 to 40 years of age, many associations are looking at doing major remodeling projects to the inside or outside of the buildings to keep their look competitive with new products reaching the market.

Because such improvements are considered material alterations, it first must be determined if a membership vote will be required to make the changes to the common elements or the common areas.

Section 718.113(b), Florida Statutes provides that: “there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions.”

Therefore, in condominium associations, you need to first look at the declaration to determine what vote of the membership will be required for the material alteration remodeling. If the declaration is silent, then you will need the 75 percent approval vote of the members.

For homeowners’ associations (HOAs), there is no similar provision in Chapter 720, Florida Statutes. Therefore, you would look to the declaration of covenants to see if any membership vote is required. Typically in HOAs, no membership vote is required, so the association board and/or architectural review committee can decide on the alteration.

After determining what vote is needed to make the changes, you must then decide how the alterations will be paid for. There are four ways to pay: 1) use operating funds or increase the budget to raise the assessments for the next year, 2) levy a special assessment, 3) borrow money from a bank or financial institute, or 4) borrow from reserves.

Usually, you do not have enough extra money in the association’s operating account to pay for the remodel project, so if you are not going to do the work until the next year, you can increase next year’s budget to cover the costs. As the board approves the budget, you probably don’t need a membership vote.

However, most associations don’t want to make large increases in their regular assessments from one year to the next because members plan their personal budgets on paying about the same every month or every quarter for their regular assessments.

Instead, you could levy a special assessment wherein the members have to pay one or more lump sums over time to cover the costs. You may or may not need a membership vote for the special assessment depending upon what your bylaws or declarations provide.

The next option is to borrow the money from a bank. Most associations don’t need a membership vote for the association to borrow money, but check your governing documents because some require a membership vote to borrow. You can pay back the bank loan over time, then with spread out increases to the future annual budgets. You will also have to factor in interest.

The last option is to borrow from reserves. If you have not set aside a reserve line item for remodeling, you will definitely need a vote of the members in a condominium to borrow reserves and you might need a vote in a HOA.

Section 718.112(2)(f)3, Florida Statutes provides that: “Reserve funds and any interest accruing thereon shall remain in the reserve account or accounts, and may be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority vote at a duly called meeting of the association.”

A similar provision is provided in Chapter 720 for HOAs requiring a membership vote to borrow from reserves if reserve accounts were established by the developer or the membership elected to provide for reserves.

So make sure you get the proper vote of the members or the board before you start on that upgrade remodel project.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

With the return of snowbirds in season, we start getting phone calls from associations telling us some condominium unit owners are complaining about the conduct of their neighbors and they want the association to do something about it. The complaints are usually about either noise or smoke emanating from a neighboring unit or unit lanai. The owner complaining usually wants the association to get their neighbor to quit smoking or quit creating noise.

Under the general theories of nuisance law in Florida, the law will protect a “reasonable man” from things that are unreasonably bothering him. However, the law will not protect a “supersensitive” person from others’ conduct that is bothering him but would not otherwise bother the reasonable man. Some people are supersensitive or allergic to smoke, or mold, or light, or peanuts, or cats or noise, or pesticides. When supersensitive persons have such conditions, some may think that the non-sensitive persons living around them must legally accommodate their sensitivity conditions.This is not the case.

Condominium associations must enforce nuisance provisions in their documents when an actual legal nuisance arises. However, it is not required to, nor should it enforce, that which is considered a nuisance only to supersensitive people.

If an association receives a noise complaint from a unit owner that the neighbor above is being too loud and keeping the owner up at night, before the association can do anything for that owner, it must make an independent determination as to whether the noise emanating from the unit above does in fact rise to the level of a nuisance that would affect the “reasonable man.” There are all kinds of noises in condominium buildings that many unit owners must put up with as normal building noises and the law says there is nothing wrong with such noises as they are part of building living.

In such a noise complaint case, the association should tell the owner, who is complaining, that before it can take any action it needs to make an independent determination as to whether the noise complained of would be considered an actionable nuisance to a reasonable person. In order to make such a determination, the association will have to have representatives “camp out” in the owners unit so that the representatives can listen to the noises complained of and determine if they find them unreasonable.

Many owners will not want association representatives hanging out in their unit, and if they don’t, they can always bring a nuisance legal action in the local courts directly against their neighbor and hire their own attorney to do so. However, the association cannot help the complaining owner any further if the owner refuses to let association representatives in their unit to make an independent determination of the severity of the complaint.

For those owners, who do allow the association to camp out, if the representatives listen and believe the noises are normal building noises that many have to put up with and would not therefore be considered a nuisance to the reasonable man, then the association can do nothing further for the owner.

If the representatives believe the noises are unreasonable and a nuisance, then the association would send a letter to the neighbor and tell them to abate the noise and if they do not, then the association will bring legal action against the neighbor by first bringing a mandatory arbitration action with the State of Florida in Tallahassee. Such a State arbitration action can take up to six (6) months or longer. Thus, it may be a long time before any relief to the complaining owners as the arbitrator could send the matter to mediation and then either party can appeal whatever finding of the arbitrator in the local courts.

Therefore, when it’s a neighbor v. neighbor nuisance action, it is usually much quicker for the complaining owner to just go after their neighbor legally in the local courts on their own. Even if the owner decides to go after his neighbor on his own, the owner must still realize that if he is supersensitive, there is a good chance he will lose in court as the nuisance laws generally protect the reasonable person and not the supersensitive.

When it comes to smoking, a building can always amend it declaration of condominium to go to a non-smoking building if the requisite vote of the members to amend the declaration is obtained. You might have to grandfather current smokers in the building to get the required vote.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

Typically this time of year I report on all the new laws the Florida Legislature adopted in this year’s session that affect condominium, co-ops and homeowners associations. However, any bills that would have had major direct effects on the operation of community associations died in committees, so there is not much new to report.

One major fallout of the quiet session was the lack of any new bill extending the ability of associations to take a membership opt-out vote to avoid having to install expensive fire sprinklers in high-rise residences. In the past, every few years the Legislature amended the applicable statute which extended the opt-out vote since 2002. The last amendment was in 2010 wherein Section 718.112(2)(l), Florida Statutes now reads:

“Notwithstanding Chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or unit owner is not obligated to retrofit the common elements, association property, or unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable governmental entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. The local authority having jurisdiction may not require completion of retrofitting with a fire sprinkler system before January 1, 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system and has not voted to forego retrofitting of such a system must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will become compliant by December 31, 2019.”

Section 553.895, Florida Statutes, entitled “Fire Safety” is the statute that determines which buildings are considered high-rises that will need to either take a vote to opt-out or to pull a building permit to install sprinklers. Although the wording in the statute is confusing, we believe it says that if the construction contract for the building was let after Sept. 30,1983, buildings three stories or higher with interior corridors, or buildings over 75 feet in height with exterior corridors, will need to have sprinklers installed throughout the building and in the units unless an opt-out vote has been taken. If the construction contract for the building was let after Jan. 1, 1994 and the building is three stories or higher, sprinklers must be installed unless an opt-out vote is taken. It appears then that one- and two-story condominium and co-op buildings are in the clear and need not be concerned about this issue or taking an opt-out vote.

So if your high-rise condominium or co-op building does not have fire sprinklers in the units and the common areas of the building, your association will need to take the op-out vote before the end of this year or face the wrath of your local fire department, who will require you to install sprinklers, a very expensive venture. We suggest that the membership vote opt-out be taken sometime this fall.

This sprinkler requirement statute appears to have been originally pushed through the Legislature by those special interests whose business is to install fire sprinkler systems, which must be a very lucrative business. Over the years some folks representing condominiums and co-ops fought back by getting the Legislature to extend the deadline to add sprinklers or opt-out. It looks like this year the ones who always got another extension may have either dropped the ball or could not find a passable bill to latch another opt-out extension onto.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.