HOA Q&A: Can monthly assessment invoices be emailed instead of mailed via postal service?
Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q. Traditionally our association has mailed monthly assessment invoices to owners via U.S. mail. We are now considering e-mailing the statements in order to save time, money and paper. Can we do this? -- B.B.C., Naples
A. Yes, you can do this, but you must comply with the law that was passed in 2021. Chapter 718 of The Condominium Act; Chapter 719 of The Cooperative Act; and Chapter 720 of The Homeowners Association Act were all amended in 2021 to provide the following:
If an association sends out an invoice for assessments or a unit’s statement of the account, the invoice for assessments or the statement of account must be delivered to the owner by First Class United States mail or by electronic transmission to the owner’s e-mail address maintained in the association’s official records.
Before changing the method of delivery for an invoice for assessments or the statement of the account, the association must deliver a written notice of such change to each unit owner. The written notice must be delivered to the owner at least 30 days before the association sends the invoice for assessments or the statement of the account by the new delivery method. The notice must be sent by first-class United States mail to the owner at his or her last address as reflected in the association’s records and, if such address is not the unit address, must be sent by First Class United States mail to the unit address. Notice is deemed to have been delivered upon mailing as required by this paragraph.
An owner must affirmatively acknowledge his or her understanding that the association will change its method of delivery of the invoice for assessments or the statement of the account before the association may change the method of delivering an invoice for assessments or the statement of account. The owner may make the affirmative acknowledgment electronically or in writing.
Once the owner has acknowledged receipt of the notice of change of delivery method the acknowledgment must be kept as part of the association’s official records.
As you might expect some owners will never return the acknowledgement and the association will still be required to send the assessment invoices via U.S. Mail to those owners.
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Q. What level of owner approval is required to waive reserves in a condominium or cooperative or use the reserves for a different purpose? -- B.D., Fort Myers
A. Formerly, in order to waive reserves in a condominium or cooperative a majority of the owners who were present and voting in person or by proxy at a members meeting were required to vote in favor of waiving. However, as of June of this year the law was changed and now a majority of all of the owners in the association are required to waive reserves. However, for those condominiums and cooperative that are three stories or more in height that are required to maintain structural integrity reserves (SIRS reserves) the reserves cannot be waived at all. The non-SIRS reserves can still be waived though. Additionally, formerly the owners could vote by a majority vote of those voting to approve using reserves for another purpose. The new law requires a majority of all owners to approve an alternate use of reserves. Again, however SIRS reserves cannot be used for any purpose other than the purpose intended.
Q: Our condominium budget has increased dramatically due to increased insurance premiums. I know the Condominium Act allows owners to overrule a Board-adopted budget that has increased more than 15 percent over the prior year’s budget. Can we use this law to override the budget in this case? -- S.M., Sarasota
A: No. You are correct that in some cases if the Board adopts a budget that is greater than 15% of the prior year's the budget can be overruled by a vote of the owners. However, there have always been certain exclusions from the 15% calculation, such as one-time expenses not expected to be incurred on an annual basis in the future, such as a onetime special project for that year. This same law is found in the Chapter 719 which applies to cooperatives. However, the law was changed to add insurance premiums to the list of excluded items. So if your insurance premium increase is what caused your budget to be increased by more than 15% that amount is excluded from the calculation. Note this law only applies to condominiums and cooperatives. There is no similar law for homeowner associations.
Richard D. DeBoest, Esq., is a Partner of the Law Firm Goede, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: [email protected]. 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, 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.
This article originally appeared on Treasure Coast Newspapers: HOA Q&A: Can assessment invoices be emailed, not sent via U.S. mail?