Dear Poliakoffs: Can you please tell me what the law says with regard to assessment fees not being disclosed to the buyer until after an agreement has been signed? We have not yet closed but the Realtor and board are trying to tell us we have to pay $400, which we were not told about. We feel like we’ve kind of been tricked.
I have numerous emails between my Realtor and myself asking for any and all board documents, but the application, etc., was not given to me until after the real estate agreement was signed. The board is calling the fee a “transfer fee” but the agent is calling it a “capital contribution” and it is the amount of two months of maintenance. And we still have to pay the regular maintenance.
Any information that you can provide would be appreciated. I’m wondering if I should ask the seller’s agent and my agent to fork over the money since they dropped the ball, but I don’t know if legally they were supposed to provide such information. – S.M.
Dear S.M.: The condominium act provides that a prospective buyer can demand that the association provide them estoppel information concerning any money owed by the selling unit owner; and the buyer can rely on the information provided.
Otherwise, the buyer is liable with the seller for all money owed by the unit owner for levied assessments. Astute Realtors and attorneys know this and should ensure that the estoppel letter is received prior to closing. So if this amount was owed by the seller, it should have turned up in the estoppel letter requested by your Realtor.
If the requested funds are instead intended as a so-called “transfer fee” it would depend on whether the fee is provided for in the association documents – that is, whether the documents specifically provide that new unit owners may be asked to contribute to the association.
This is why it is always a good idea to request and read all relevant documents (the declaration of condominium, bylaws, articles of incorporation and rules and regulations) of any association before you buy a unit in a shared ownership community.
Even then, there would be a potential argument that this is an illegal assessment against a single owner, but honestly it’s a bit of an open question that would take a lawyer’s review and guidance.
Dear Poliakoffs: I am a licensed community association manager who lives in a condominium in New Tampa . Our association has a five-member board, and I suspect that the board members are not paying attention to their fiduciary duty.
I am willing to serve on the board but have been rejected because of “how much I know.” What do you suggest I do in order combat this behavior?
We are currently going through a Chapter 558 turnover lawsuit for the past five years and there seems to be no end in sight.
The property manager is overpaid and works 7 a.m.-3 p.m. He has a part-time assistant three days a week, and there is selective enforcement of the rules and regulations. Can you please advise the best way for me handle this? – M.M.
Dear M.M.: As a refresher for our readers, every association board member has a legal obligation, known as a “fiduciary duty,” to act in the best interests of the association.
However, as a community association manager, you know from firsthand experience how difficult it is to compel individuals who aren’t willing (or interested) in fulfilling their fiduciary duty to do so. The best remedy when boards don’t act in the best interests of their fellow unit owners is to recall the board.
I’d meet one-on-one with my neighbors, educate them as to what is happening with the board, and solicit their signature on a petition to recall the board. Keep in mind that a separate certificate is required for each director being recalled.
Dear Poliakoffs: I need written proof that checks are official records. I have looked in the Chapter 718 of the condominium act. The only thing I can find in 718 is a section that reads, “all other records of the association not specifically included in the foregoing which are related to the operation of the association.”
I know they are official records, but our board says there is no written proof that they are. I requested some canceled checks for proof of payment and they refused me access to these checks. Everyone I have asked, including attorneys, have told me they are official records. What do say think? – E.S.
Dear E.S.: Under the law, the specific always controls over the general. If an item is not expressly excluded from being part of the official records, then it is deemed to be part of the official records. “Checks” are not excluded, so under the provision quoted (“all other records”) checks are in our opinion are part of the official records subject to unit owner or their authorized agent’s review.
Gary A. Poliakoff and Ryan Poliakoff are co-authors of “New Neighborhoods: The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is a freelance writer and certified mediator. Email questions to condocolumn@becker-poliakoff.com. Please be sure to include your hometown.
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