Hi All,
The following discourse is NOT legal advice; merely researched opinion.
The following appears in a Comment Stream in the BLOG:
Apr 8, 2009 8:33:00 PM
Anonymous said...
Is this in(v)estigation really a CV law as Cerabino says or is it just a rule which any association can ignore if it wants to.
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An interesting question; let's have a look at some relevant aspects.
It has been common over the years to insert articles and blurbs in the UCO Reporter stating in various ways that everyone who lives in CV must be investigated. Some of the Blurbs ascribe this"requirement" to the Florida Condominium Act; FS - 718.
Following is a Reference:
See the UCO Reporter, Page 5, Investigations column.Which states that all CV residents must be investigated!
http://www.scribd.com/doc/11482923/Reporter0902
Additionally, we can all remember endless insertions in the UCO Reporter that stated:
Page two...UCO Reporter...September 2008...." No person shall be permitted to occupy a unit without a certificate of approval per Florida statute 718 "
This is simply not correct!!!
I suggest to our BLOGGERS that all of this depends on your Association governing documents.
Nowhere in FS - 718 is there a requirement to investigate any person as regards Sale, Purchase, Lease, sublease or Mortgage of a Unit.
So, where Does this "requirement" come from?
The following extract from FS - 718 is probably the kernel from which springs the great Investigations tree:
So, it is upon the requirement to Approve the Sale, Mortgage, Lease, Sublease or other transfer of a Unit; that investigation requirements probably derive.
All of this , must be spelled out in your Declaration, Articles or Bylaws to have any force of law whatsoever.
It is important for all to understand that UCO can levy NO requirement to investigate anyone. The Standard Operating Procedures (SOP) promulgated by UCO, apply only to those Associations who wish to use UCO as conduit to enable your Investigations. These SOP's have NO FORCE OF LAW whatsoever.
Furthermore, any Association is perfectly within their rights to carry out their own Credit Checks and Criminal Background Checks; using any number of professional firms who are in the business of Investigations. Or of course to amend their Bylaws and not require any Investigation whatsoever.
Is this a good idea? probably not; as you may want to know if you are approving a Felon or a Credit Deadbeat who will not pay the Condo fees.
The only point to the preceding screed is to separate Law from local doctrine. The right of Associations to Investigate prospective Unit Owners is well established in Florida Court Cases and Arbitration procedures; just make sure your Governing documents provide for the process.
Dave Israel
3 comments:
Thanks for this notice. I have often heard people make some sort of declarative statement on Condo living, adding "it's in 718" only to read through 718 and find 718 says nothing of the kind. Some months back someone pointed this out on the Blog with respect to WPRF saying something was in 718 when it was not.
David,
You've touch upon some very important issue which I will attempt to address.
Every Association in Century Village has the documentary authority to 1. Require investigations for prospective applicants unless waived by the association (said right to waive is also provided in the documents), and, 2. To charge a fee to be determined by the Board of Directors. This authority may be found in the original (developer) documents, and in both the 1990 and 1999 Master amendments drafted by Rod Tennyson.
UCO MODEL DOCUMENTS
Bylaws
Article II.MEMBERSHIP AND VOTING PROVISIONS
SECTION 1.
...
"Any application for the transfer of membership or for a conveyance of interest in, or to encumber or lease a condominium parcel where the approval of the Board of Directors of the Association is required, as set forth in these By-Laws and the Declaration of Condominium to which they are attached, SHALL BE ACCOMPANIED BY AN APPLICATION FEE IN THE AMOUNT TO BE SET BY THE BOARD OF DIRECTORS TO COVER THE COST OF CONTACTING THE REFERENCES GIVEN BY THE APPLICANT, AND SUCH OTHER COSTS OF INVESTIGATION THAT MAY BE INCURRED, NOT TO EXCEED $100.00 PER APPLICANT OR PER FAMILY OR ENTITY. PROVIDED, HOWEVER, NO SUCH FEE SHALL BE CHARGED FOR THE RENEWAL OF A LEASE."
The problem arises only as to the amount that may be charged for such application/investigation by the association.
Since historical records of the Condominium Act go back only as far as 1997 on the website,(florida senate.gov.), I was unable to determine in which year the Condominium Act set the maximum dollar amount of the Transfer Fee to $100; or the year that the Condominium Act required associations to provide documentary authority (an amendment recorded in their documents) in order to charge a transfer fee at all. I found it interesting though, that the original documents had no stated dollar amount; the 1990 documents specifically set the fee at a maximum of $50.00; and, the 1999 UCO Model Documents set the fee at maximum of $100.00.
There are amendments which I have found, for example, (Kent F, 2/21/85) wherein upon incorporation of their Condominium, and the Amendment to their Declaration and Bylaws which accommodated their new incorporation, the application fee was set at $50.00 (and no future amendments increased the maximum charge to $100.00).
I have also found an isolated amendment in many associations which were recorded for the sole purpose of increasing the $50.00 to $100.00.
Regardless of the year that the legislature amended the Condominium Act to set an upper dollar amount, ($50.00 and then 100.00) and required that such fee be stated in the documents in order for such charge to be allowed, there are STILL ASSOCIATIONS IN THE VILLAGE THAT ONLY HAVE THE DOCUMENTARY AUTHORITY TO CHARGE A MAXIMUM OF $50.00!
The "requirement to be investigated as per 718" is of course clearly misleading, as Florida Statute does not address such matters directly. Since such a requirement is directly addressed in the Bylaws, then in addition to "Transfer Fees" (718.112(2)(i) F.S.) under the "Required Provisions" section of Statute, there is also the following Statutory authority, which again is also an indirect authority (for the Association's Bylaws to require investigations):
718.112(3) OPTIONAL PROVISIONS.--The bylaws as originally recorded or as amended under the procedures provided therein may provide for the following:
...
(d) Other provisions which are not inconsistent with this chapter or with the declaration, as may be desired.
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