Q: My condominium association held a member meeting to vote on a project that would materially alter the common elements. The project is very controversial. At the meeting it was announced that the material alteration was approved by the proper percentage of owners. The day after the meeting I made a statutory request per F.S. 718.111 asking the associations’ board of directors and its property manager to produce records of the proxy votes counted on the meeting for inspection. The request was not granted and, about two weeks later, an email response was produced by the board of directors denying the request on grounds of privacy concerns. My requests were made via email to the board of directors and property management, not via certified mail. Do the damages stipulated in 718.111 apply, or must the request be submitted exclusively via certified mail to the property management company for this to ‘count’?
A: First and foremost, the proxies are official records, and you cannot be prevented from inspecting and copying them based on “privacy grounds.” Florida Statute 718.111(12) for condominiums does not require that a request to inspect and copy official records to be made by certified mail. However, the Statute does allow the Association to impose reasonable rules regarding official records request and I believe it is reasonable to require the request to be made via certified mail or other “trackable” delivery method, so it is clearly documented when the request was received.
The Association has 10 business days to provide access to the records and if it fails to do so then it is presumed that the access was denied intentionally and a $50 dollar a day penalty can be imposed starting on the 11th day. You should ask the association if it has adopted and official records request policy. Also, keep in mind it is important to frame your request as a “request to inspect and copy the official records.” The Division of Condominiums has upheld an association’s denial of records when the request was framed as “send me a copy of” the record. The Statute does not require the association to send the records only that they be made available for inspection and copying at a location within 45 miles of the community.
Q: I live in a condominium and my first-floor unit was flooded due to Hurricane Nicole. I have a construction background although I am not a licensed contractor and right after the hurricane, I gutted my unit and then bought drywall, insulation and new flooring and installed it all myself with the help of a friend. My cabinets were fine, and I did not need to remove them. The Association has now received insurance proceeds and I have requested to be reimbursed for my time, labor and materials. The Association is withholding payment until I get the Unit mold, moisture and pathogens due to cat 3 (sewer) water tested and the cabinets removed so the wall behind can be tested. Further, the amount of money they are going to pay me is less than I expended. Is this legal?
− K.G., Treasure Coast
A: Yes. The Condominium Act Section 718.111(11) provides that the reconstruction of the Unit after it is damaged by an insurable event is the responsibility of the Association unless the Board authorizes the Unit Owner to do the work. When the Association allows the Unit Owner to do the work it can put reasonable conditions on it such as using a licensed contractor and inspection requirements.
In most condominiums the boundary and ceiling drywall and the insulation behind it is not part of the Unit but rather is Common Element which is the responsibility of the Association not the Unit Owner. So, while it was fortunate that you could so quickly renovate your Unit it is necessary and reasonable for the Association to determine that the work was done properly and that all mold, moisture and pathogens have been eliminated.
Further, you are entitled to reimbursement for your reasonable time, labor and materials but only at the same rate that a qualified contractor would charge. Most insurance companies use an estimating software known as Xactimate and that is how they determine how much to pay on a claim. If your costs exceed what the Association’s insurance carrier will pay you, in my opinion are not entitled, to be reimbursed for your excess costs. Finally, while your cabinets did not appear to be damaged it is, in my experience, highly likely there is mold and moisture damage behind them, and the association is entitled to inspect them and remove them if necessary. Also, keep in mind it is highly likely in the future that mortgage companies and new buyers are going to require proof that a Unit was properly renovated following being flooded by cat 3 water. Without the proper documentation you may find it difficult to sell or refinance your Unit.