Q: I am on the board of directors of a condominium association, and one of the units in our association has both unpaid assessments and taxes. We recently received a notice that the county will sell the unit to satisfy the unpaid taxes. We have questioned how this will affect the condominium documents and the unpaid assessments due on the unit. Does the new owner have to pay the past-due assessments once they acquire title from the tax deed sale? (M.R., via e-mail)
A: While the Florida Condominium Act and most condominium documents generally state that the purchaser of a condominium unit is “jointly and severally” liable with the prior owner for any unpaid assessments due when they take title, there are exceptions. One exception is foreclosing first mortgages.
A tax deed sale is another general exception. When a unit is sold to satisfy unpaid taxes, all other interests in the unit are generally terminated. Therefore, if the association has unpaid assessments due from the unit and the unit is sold for unpaid taxes, the new owner will not owe the association for the unpaid, past-due assessments. However, the prior owner continues to have a personal obligation to pay those amounts. Unfortunately, trying to recover monies from the former owner often does not make financial sense.
Even though unpaid assessments are extinguished, the declaration of condominium continues to apply to the unit. The new owners would be responsible for assessments that come due following the date they take title.
There are strategies that can be employed in certain situations to protect the association’s financial interests in the unit. The association’s attorney should be able to review the situation and determine if a proactive or passive approach better serves the association or perhaps something in between.
Q: I am a unit owner in a condominium association and have had consistent problems with our association manager. I have requested that the board of directors terminate the manager and the management company contract, and they have refused. Is this an issue that the membership can vote on? (A.B., via e-mail)
A: Generally, no.
There are certain instances where unit owners have the ability to vote on the termination of contracts. These include contracts entered into by a developer-controlled association, certain telecommunication contracts, and contracts involving director conflicts of interest. There are some additional rules in the timeshare condominium context.
However, as a general matter, and under most condominium documents, the association, through the board of directors, has the ability to contract for services, including management services. This authority is rarely subject to a unit owner voting requirement.
In fact, most bylaws contain language that grants the board of directors all of the powers and duties of the association except where a membership vote is specifically required by either the Florida Condominium Act or the association’s condominium documents. Typical areas where the statute would require an owner vote include the election of directors, the waiver or non-scheduled use of reserve money, waiver of audits or other financial reporting requirements, material alterations to common property, and amendments to the condominium documents.
Though I have seen it once or twice, it is highly uncommon for condominium documents to require a membership vote to enter into such a management contract or give the members a veto over such agreements. The Florida Condominium Act does not require a membership vote for management contracts.
If owners are dissatisfied with how the board of directors manages the community, including what manager the association is using, the most effective approach is to seat different board members through the usual election process, or the recall process provided for by the statute. However, even if a new board is in place, the association can only terminate a management agreement or any agreement according to the terms of the contract itself.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.