Question:
At a recent Board meeting, the Board and ARC Committee discussed appropriating common area, their words exactly, property for personal owner use for those owners to build an entertainment patio (chairs and grills) in the back of their waterfront units (9) either an approximately 6′ x 9′ patio and for those not on the water an approximately 4′ x 8′ patio, basically eliminating common area property for the owners personal use.
The Owner would be in charge of moving any water or electrical lines where the patio will be installed, installing the approved ARC pavers and maintaining this area from then on, and new owners would also have to maintain it. The HOA would not be in charge of this.
How can an HOA appropriate common area and also not treat all owners equally into this appropriation? Can an HOA do/give more to one owner than another?
Would this need to be deeded to the owner if this is allowed, since now it is the owner’s responsibility to maintain?
If the HOA can’t appropriate it and allows the owners to install a patio anyway, then can any owner in the community use this as common area? Can owners that are not on the waterfront utilize these to sit on?
Any light you can shed on this would be appreciated as the Board/ARC committee can’t show where it states it can do this in writing, either backed by Statute or Law of any sorts.
I for one have learned not to take any Board at their word! lol
– Sharon
Answer:
Hi Sharon,
It may depend on certain qualities the property has and the nature of this appropriation. If the appropriation involves a sale of the common areas to the other homeowners, according to the Florida Not for Profit Corporation Act Section 617.1201, the following transactions may be authorized without a membership vote:
- Any mortgage or pledge of, or creation of a security interest in, or conveyance of title to, all or any part of the property and assets of the corporation of any description, or any interest therein, for the purpose of securing the payment or performance of any contract, note, bond, or other obligation of the corporation;
- Any sale, lease, exchange, or other disposition of less than substantially all the property and assets of the corporation; and
- Any sale of all or substantially all of the property and assets of the corporation if:
- The corporation is insolvent and a sale for cash or its equivalent is deemed advisable by the board in order to meet the liabilities of the corporation; or
- The corporation was incorporated for the purpose of liquidating such property and assets.
However, these may only apply if the governing documents don’t say anything otherwise. Kindly check the governing documents and find provisions regarding the sale of property. It may contain provisions requiring the HOA to get a membership vote to sell common areas. If so, the HOA needs to get a vote. If not, the HOA may be allowed to simply sell the property. If the property is sold, then these areas may be exclusive and private.
On the other hand, if the appropriation of property is merely a conversion of the property into a limited common area, the association often needs to amend the governing documents to do so. This may or may not require a vote from the membership. Kindly review the governing documents for verification. If they are converted into limited common elements, homeowners with access to the limited common elements are generally the ones required to maintain it. They may also pay higher association dues, depending on the governing documents. The use of these limited common elements is typically exclusive.
If the HOA does not have the authority to appropriate the property by sale or conversion, but still allows the installation, the common areas may remain available for all to use. However, it’s best to consult a lawyer for further guidance.
Disclaimer: We are not lawyers. The information provided on this website does not constitute legal advice.
