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Owner Who Dislikes Fee Can't Refuse To Pay It

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By RICHARD WHITE, Tribune correspondent

Published: November 3, 2007

I live in a town house community governed by a homeowners association. Some units are 10 years old and some are 4 years old and built by a different builder. It has come to the attention of the owners that the newer units are having a problem with the stucco separating from the wood substructure, probably because of moisture getting in there.

The president has mentioned to me that the board is considering an assessment to fix the stucco, which could amount to tens of thousands of dollars. I have informed the president of laws regarding construction defects, but since they have had numerous problems with the builder, he seems reluctant to pursue this issue with the builder.

Do I have any legal right to refuse to pay an assessment if the board has not first tried to remedy the situation under the law?

K.A.
Redington Beach
Regardless of the duty of the association to pursue a lawsuit against the developer, the fees are not related. You must pay the fees. No owner has a right to withhold payment if he does not agree with a board decision.

Your communication with the president is not the way to solve problems. You need to write a letter to the board of directors because it is responsible for the operations of the association. The president and officers have no responsibility except what the directors authorize.

My guess is that the president is aware that the developer has no funds to correct the problems. Maybe he feels that to engage an attorney, the legal expense will not result in collecting funds to make the repair. You can get your best answer by writing to the board and letting it provide the answers.

We live in an adult community, and the board approves all applications for sales and rentals. The board refuses to approve any applicant who is younger than 55 years of age or with a poor credit rating. Renters have zero financial obligation to the association so why should credit matter?

Your advice as to the rights of the board to have such strict rules for sales and rentals would be greatly appreciated.

C.R.

Largo

First, read your documents to see what requirements are printed for the board to review or screen new applicants. Though the adult community laws (55 and older) have restrictions, they are based on residency, not ownership. One resident must be 55 years of age or older, and no children younger than 18 can live in the home.

Some documents have different age restrictions, and in that situation, the board should seek an opinion letter as to any age restrictions. Your documents may allow other requirements such as credit and criminal checks on prospective residents. As for credit checks on renters, it is often thought that if a tenant is unable to pay the rent, owners would not be able to pay their fees.

I strongly suggest that a board that screens all sales and rentals have a written policy that has been approved by an attorney. Failure to approve a qualified applicant may result in a lawsuit against the association.

The directors are elected by the membership and comprise the board of directors. The board of directors elects the officers of the association, some of whom need not be directors.

This raises the question of who is counted to establish a quorum at a board meeting.

D.K.

St. Petersburg

Only directors, not officers, count for quorum. In addition, officers do not vote at board meetings; that is reserved for the directors.

I have often said directors have the responsibility to operate the association. Officers have duties assigned by the directors and the documents.

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