A few owners are holding up move to hurricane impact windows that would save condo money

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff , an attorney and author based in Boca Raton, has answers.

Question: I am on the board of our condominium. I have been charged with reviewing our ever-increasing insurance costs. After a review, it has been determined that we need to upgrade to impact windows and doors or shutters to save a substantial amount on our annual insurance bill. Out of 20 units, roughly five owners do not want to spend the money to upgrade their windows, which is understandable, but it is going to prevent us from taking advantage of the sizable insurance discounts.

Can we “reward” those that invest in impact doors and/or shutters with a lower condo fee and keep the fee the same for those that don’t upgrade? Is it legal to pro rate condo fees like this? Signed, M.R.

Dear M.R. ,

Unfortunately, it is not. The Condominium Act provides that you are obligated to charge owners for their share of the common expenses in the manner they are allocated to them in your declaration of condominium. And you couldn’t change that allocation without the approval of every owner, which is never going to happen.

However, you have another option.

The Condominium Act, at Section 718.113, provides that the association has the right to install hurricane shutters, impact glass, or other types of code-compliant hurricane protection as a common expense. If the association is responsible for the maintenance, repair and replacement of windows and shutters, the board can make this decision on its own. If unit owners are responsible to maintain, repair and replace windows and shutters, a majority of all owners must approve the installation.

Given that you say the vast majority of your owners approve of your plan to install impact windows or shutters, and whether that decision could be made by the board alone or require a membership vote, it would seem that you will be able to start the project despite the objection of a small minority — and they will be fully responsible for the cost (note that if they already have impact windows or shutters, they are entitled to a credit equal to the pro rata portion of the installation cost that is assigned to every unit). I recommend consulting with your attorney to help you through this process.

Florida law permits feeding the ducks, but can homeowner associations ban it?

Question: Where in Florida law is the “don’t feed the ducks” law?  When I was redoing our association’s bylaws, I don’t remember seeing it. Signed, J.K.

Dear J.K.,

As readers may remember, a few weeks ago I answered a question about using association covenants and rules to prohibit feeding ducks on the property, from an association law perspective. In response to that column, several people wrote to tell me that Florida law prohibits the feeding of all wildlife, including ducks — and so I noted having received those letters in my next column.

After receiving your email I’ve gone back to research the issue, and unfortunately (and as is often the case) these people were mistaken — Florida law prohibits the feeding of some wildlife (certain birds, bears, raccoons, etc.), but not ducks. Lesson learned.

To restate my earlier advice for those who are hoping to curb duck feeding in their community:

Most HOA governing documents give the board broad authority to promulgate rules governing the use of the common areas; and many have the authority to govern lot use, as well. Rules prohibiting the feeding of wild animals are quite common, and my clients share duck concerns with me on a regular basis. Almost certainly, to the extent that she is feeding the ducks anywhere on the common areas, the association can pass a rule preventing her from doing so, and it can police that rule with fines, suspension of her common area use rights, or a lawsuit. And it’s quite possible the HOA can prevent her from feeding the ducks on her own property, as well.

When poor voter turnout stymies condo improvements

Question: What can an elected board do to proceed with by-law changes or condo improvements if the association repeatedly gets only a small percent of owners to participate in the vote? Signed, S.A.

Dear S.A.,

In most cases, amendments to the governing documents and material alterations to the condominium property require membership approval. The first would be described in the governing documents themselves; and with respect to material alterations, they require the approval of 75% of the voting interests, unless a different number is specified in the declaration of condominium.

Lack of community participation often freezes condominiums in place and time with no ability to modernize their often-outdated governing documents, and no ability to update and modernize their building décor. But unfortunately, this still doesn’t give the board an excuse to make these decisions on its own. I have found the only solution is a concerted effort to communicate with owners and motivate them to vote on these important issues. It usually takes a team of volunteers to go unit to unit and actively solicit votes from owners, explaining the importance of their participation and the meaning of the vote itself.

Sometimes, it makes sense to expend this effort on amendments that lower the threshold to further amend the governing documents or to approve material alterations. Once those are passed, future approvals would be a lot easier to achieve.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com . Please be sure to include your location.

This article originally appeared on Palm Beach Post: A few owners are holding up move to hurricane impact windows that would save condo money