An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published May 24, 2011

Week after week we are reading in the newspaper columns answering questions from owners and board members about problems in Florida's community associations. You are most likely familiar with some of these columns -- Gary Poliakoff, Joe Adams and/or Tamela Wiseman ring a bell?

Reading these columns and especially the answers to the questions, I often ask myself: Are these answers really good advice -- or are they actually a hidden form of advertising?

Let's be honest -- there are really no straight-forward answers in the columns. It's always "... but you can as well..." or something to that effect.

Under the line it's always: You better ask a specialized attorney to get an opinion what you can do if you don't like the answer -- or the law the answer is referring to.

This past Saturday I ran across another one of these Q&A columns, written by Tamara Wiseman from the law firm of Becker & Poliakoff.

The simple question asked by a reader: "The legal documents for our Sarasota homeowners' association only provide spending authority for "maintenance, repair and replacement" of the common areas. A request has been made to add lights to our two swimming pools to allow evening use, an approximate $40,000 expenditure, which some believe constitutes an improvement. What limitation does the board have in spending association funds for an improvement? Is this ability based upon some percentage of the annual budget?"

The simple answer should have been: "Some HOA governing documents are silent on the subject of making material alterations or substantial additions to the common property. A Florida appellate court ruled recently that in that case, such alterations or additions may be improper."

The person asking the question already supplied the wording of the governing document of the association regarding the spending authority of the board: "... for 'maintenance, repair and replacement' of the common areas."

That language clearly eliminates anything from being decided by the board that can NOT  be considered maintenance, repair and replacement, like adding something that didn't exist before, for example pool lighting or (imagine that) lobbying fees of any kind. [Sorry, couldn't help myself!]

The people who wrote the original language knew exactly why they added these words to the governing docs: To prevent the board from going on a spending spree without the consent of the owners who are footing the bills.

With other words, the answer should have been something like: Yes, pool lighting has to be considered an additional improvement and requires the vote of the membership, percentage of required voter approval determined by the governing documents, or by the statutes if docs are silent.

But that's where Wiseman just got started. What follows is a lengthy discussion about what "could be done" and/or what "should be done" -- and the advice that "the board should seek a legal opinion, based upon a complete review of the documents, as to whether the expenditure of association funds for pool lights can be made properly by the board."

And then comes the really profitable advice for attorneys -- the one that will empower boards even more and allow them to ignore the will of the owners: "I recommend that the board be given the authority to spend funds up to a set dollar amount or percentage of the budget. This allows for flexibility and avoids the debate your HOA is now having about what constitutes a material alteration or substantial addition rather than just an item of maintenance, repair or replacement. The membership approval requirement for larger expenditures should be reasonable and based on a percentage of only those members who cast votes, so that a member who fails to vote is not automatically considered a 'no' vote." [Pay special attention to the last part of the answer.]

Don't forget: Nothing creates more lawsuits than a dictatorial board, where board members do what they want -- supported by an association attorney and a management company that already envision the profits when the fight between owners and board members erupts.

In my opinion, we would see litigation in community associations reduced by half, if people just would do what the original governing documents tell owners and board members to do -- without getting advice how to circumvent the provisions of the original contract, or how to circumvent the existing regulations and statutes.

That leaves the actual question: Who is really profiting from these advice columns. The folks asking the questions -- or the attorneys answering them? 

Aren't these Q&A columns nothing but advertisement in disguise?