Poliakoff: Shares of co-op must be delineated in bylaws

Ryan Poliakoff
Condos Q&A
According to state statues, your share of the common expenses must be described in your bylaws, and that share cannot be amended without your consent.

Dear Poliakoffs,

I own a co-op apartment in a complex of 31 units.  My question is about shares, and how they are divided between the apartments. My shares are more than the other residents, given that my apartment is larger and is a corner unit. Can the association board members decide how many shares each unit has? I have questioned the previous president, but I wasn’t given an answer. 
Signed, M.O.

Dear M.O.,

Pursuant to the Cooperative Act, at Section 719.106, Fla. Stat., your share of the common expenses must be described in your bylaws, and that share cannot be amended without your consent.  The same is true in condominiums and homeowner’s associations.  Your board cannot unilaterally decide how much your share of the common expenses should be. 

This should be an easy question to answer — just review your bylaws and see how they divide up the common expenses.  You may find an exhibit that lists the unit shares, or sometimes, in smaller communities, the shares are actually embedded within the document itself (in a condominium or an HOA the shares would be described in the declaration, rather than the bylaws).

Ryan Poliakoff

Dear Poliakoffs,

I bought my townhouse over 15 years ago and my daughter has always lived here with us. We have parking for only two cars, which my husband and I use. My neighbor was kind enough to let my daughter use one of their parking spaces.

Recently, a new management company took over, and a sticker was placed on my daughter’s car warning it would be towed if she parked in the neighbor’s space. I emailed the new management company and inquired how we could obtain a parking decal (our neighbor is onboard with this as well).

I received a letter from the management company saying my daughter is an "illegal tenant" and they are requesting $100 to do a background screening. She is not a "tenant" - this is her home. If I do not comply, the matter will be turned over to the association attorneys. All of this came about because of parking, now that she has her own car. I need your advice on how to handle this situation. 

Signed, V.W.

Dear V.W.,

My guess, from your description, is that you are talking about an adult child, as it would be extremely unusual for an association to complain that you have a minor child living with you (unless perhaps you live in a 55+ community that prohibits children, which is an entirely different matter).  You need to take a look at your declaration of covenants to see what kind of approval power the association has over occupancy. 

Some associations have the right to approve leases or sales, but not the express right to approve occupants (the declaration may expressly state that the owner has the right to reside in the unit or lot with his or her family members).  Some governing documents describe long-term occupants as tenants, requiring approval even if they are not actually subject to a lease. 

And, some associations have the right to approve all occupants, whether tenants or guests — and so the association may have a legitimate right to ask your daughter to submit to a background check.  Given that she has been living there for the past 15 years, and assuming she wasn’t hiding in the basement, you do have a legitimate argument that her occupancy was open and obvious, and that the association is now estopped from enforcing its approval rules against you.  But, assuming that there is no reason the association would reject your daughter, it’s probably less trouble to just go ahead and submit to the background check.

Dear Poliakoffs,

I live in a condo complex which was built in phases--the second phase was built a few years after the first phase.  As I understand, because of this, we are considered separate condominiums by the state. Each phase has its own budget and reserve account.   Some of the residents are talking about changing the structure so we no longer have to keep the separate budget and reserves.  Can this be done? 

Signed, P.M.

Yes, it can technically be done, but it may be practically impossible.  It’s called a merger. Section 718.110(7), Fla. Stat., states that “the declarations, bylaws, and common elements of two or more independent condominiums of a single complex may be merged to form a single condominium, upon the approval of such voting interest of each condominium as is required by the declaration for modifying the appurtenances to the units or changing the proportion or percentages by which the owners of the parcel share the common expenses and own the common surplus; upon the approval of all record owners of liens; and upon the recording of new or amended articles of incorporation, declarations, and bylaws.” 

That’s a very high threshold, and, depending on your governing documents, it might require a 100% vote.

