Ask An Expert: Your HOA, Condo Questions

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By: Avi S. Tryson, Esq. Special to the Boca and Delray newspapers

Q:  My wife and I live in a 65-unit condo in Boca Raton. We have lived here for 20 years. We live on the second floor. Now my wife is confined to a wheelchair and the condo needs to make repairs on the elevator and it will be shut down for 2 or 3 days. We have to get a hotel while the work is done since there is no way she can get anywhere as our car is parked two levels down. Is the condo association responsible for my extra expenses?

J.T., Boca Raton, FL

A: This is a very interesting and challenging fact pattern. There is an arbitration case with a similar fact pattern where the association had to complete some repairs to the penthouse unit, and the association had the option of accessing the unit from the roof or from the unit below.  The association opted to access the unit from the unit below because it was cheaper, but by doing so, that required the owners of the penthouse unit to vacate the unit and stay in a hotel.  The arbitrator ruled that because the association had a choice of how to complete the repair where one method of repair forced the owners to stay in a hotel and the other method allowed the owners to remain in the unit, and the association elected to complete the repair in a manner that forced the owners to stay in a hotel, the association was required to pay for the costs associated with the hotel stay.

Your fact pattern states that your car is parked two levels down, so if it is possible for the association to temporarily reassign a parking space for you to use during the repairs that would allow you to access your unit without the need for the elevator. If the association did not temporarily reassign a parking space for your use, then you may have a claim against the association for your additional expenses because they did not make a reasonable accommodation.

However, if a parking space isn’t available that can be temporarily reassigned, and there is only one way for the association to complete the repairs, then it is unknown whether you would have a valid claim against the association for your additional expenses. The association’s obligation in that instance might only be to provide you with advance notice of the repairs to the elevator so that you can make other accommodations during the period of time that the elevator will be under repair.

Q: Hi, I’m on the board of a homeowners association (HOA), and one of the properties in our community is owned by a bank. We’re pretty sure that the bank hasn’t sent anyone to the property to inspect it, because the pool isn’t being taken care of, and the water’s turned a green color.  We’re worried that the pool will become a breeding ground for mosquitos and a dangerous place for neighborhood kids to play in. Is there anything we can do to take care of this problem on our own? 

D.W., Boca Raton, FL

A:  The short answer is that it depends on what powers your governing documents grant to the HOA and/or the board. If your governing documents give the association or the board the right to enter onto the property and remedy the condition of the pool because the owner is failing to maintain the property, then the answer is clearly yes, and you would need to follow the protocol established by your governing documents. For example, typically the documents will require a letter to be sent to the owner providing them with a number of days to comply with the demand to do the work themselves. We recommend the letter be sent via certified mail, return receipt requested, and regular U.S. Postal Service. If the governing documents are silent, then it is still possible for the board to take action.  In either case, the association should only do the minimal amount of work to remedy the violation. So, in this instance, the association should have the pool drained, have any necessary pest control work done, and secure the pool by putting up a pool cover so that no one can fall in, but they should not take any other remedial action.

Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross.  Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.