Chapter 5

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Author:
S
ID:
208696
Filename:
Chapter 5
Updated:
2013-03-21 06:24:39
Tags:
Association Documents
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Description:
Documents required for Associations
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  1. What is the Hierarchy of Laws & Documents?
    • Constitutional Law: Federal Law, State Law, Local Ordinances 
    • Real Estate Law: Declaration, Condo Covenants & Restrictions
    • Corporate Law: Articles of Incorporation (Corporate Charter), Bylaws, Rules & Regulations, Roberts Rules of Order
  2. What are the Declaration?
    • All Declarations contained covenants, conditions, and restrictions which define and place limitations on the use of the property and facilities. (Runs with the Land)
    • Includes:
    • - Establishes the formal regulations for all of the property in the residential community.
    • - Grants easements to utilities
    • - Creates use rights and restrictions
    • - Provides for certain services and privileges 
    • - Creates obligations and standards for maintenance, operations and upkeep
    • - Identifies the common and limited areas, and unit boundries
  3. Documents in a Declaration. ("the Documents")
    • Declaration
    • Plot Plan & Surveys
    • Floor Plans
    • Amendments
    • Articles of Incorporation
    • Bylaws
    • Any filed Rules & Regulations (with Clerk)
  4. Initial Documents (by developer)
    • Draft budget
    • Prospectus
    • Engineering Surveys (required if a conversion or the association is a condo incorporated after October 1, 2010)
  5. By Statute, a valid Declaration of Condo must contain or provide:
    • Name of the condo
    • Legal description of the land
    • Identification of each unit by letter or number
    • The % by which each member will own the common elements and share in the common expenses
    • Unit owner membership and voting rights
    • Establishment of easements for ingress, egress and access
    • Survey and plot map giving a graphic description of the condo
    • Articles of Incorporation
    • Bylaws
    • Conditions by which a condo may terminate itself
  6. Articles of Incorporation (Corporate Charter)
    • The articles formally establishes an entity responsible for maintenance, management, and operation of the community property and its assets
    • Must include:
    • - Corporate name
    • - Mailing address
    • - Purpose of the corporation
    • - Manner in which the directors will be appointed or elected

    • Become effective once filed with the Department of State, Division of Corporations
    • - May start immediately
    • - However, certain community associations require approval of the DBPR DFCTSMH
    • - Other governmental agencies may also need to issue approval
  7. Bylaws
    • Formally establish the procedures for carrying out the associations responsibilities
    • Condo & Coop Acts require provisions be included:
    • - Powers, duties, selections, and removal of officers and directors
    • - Quorum, voting requirements and proxies
    • - Requirements for board of directors (administration) meetings
    • Requirements for membership and annual meetings, and election of directors
    • - The proposed annual budget of common expenses must be detailed and will show the amounts budgeted by accounts and expense classifications
    • - Transfer fees 
    • - Fidelity Bonds 
    • - Recall of board members
    • - Arbitration
  8. Amending Community Documets
    • If not stated in documents, default voting interest required to pass and amendment is two-thirds (2/3) of TVI for a condo or coop. HOA act is silent on default voting interests
    • Documents may also spell out specific procedures that association must follow in amending the documents
  9. Special Amendments
    • Amendments to Units and Amendments affecting the members interest (Condo & Coop)
    • Unless otherwise provided in the declaration as originally recorded by the developer or the bylaws as originally recorded for a coop, no amendment may:
    • - Change the configuration or size of any unit
    • - Materially alter or modify the appurtenances to the unit
    • - Change the proportion or percentage by which the member shares the common expenses of the condo/coop and owns the common surplus of the condo/coop

    • Unless the recorded owner and all recorded owners of liens on the unit join in the execution of the amendment and all other owners of the units in same condo/coop approve
    • All members and lien holders must sign before 2 witnesses and notorized
  10. Lender Consent of Condo Amendments
    • When lender consent is required for amending condominium docs (where mortgage was recorded after 10/1/07)
    • - Enforceable only to certain matters (amendments adversely affecting priority of mortgagee, right to foreclose liens )
    • - Mortgage holder can only void amendments if he failed to receive notice
    • - If mortgagee does not respond w/in 60 days after mailing date, it is presumed to have consented to amendment

    • When lender consent is required for amending condo docs (mortgage recorded before 10/1/07)
    • - Amendment adopted w/o consent of mortgagee voidable only if mortgagee did not receive proper notice/opportunity to consent
    • - Mortgagee fails to respond w/in 60 days - presumed to consent to amendment
  11. Amendments restricting leasing of condo units
    • Effective 10/1/04, any amendment restricting members rights relating to the rental of units applies only to the members who consent to the amendment and members who purchase there units after the effective date of that amendment
    • So if member votes "no" or does not vote, he may continue to lease under provisions prior to the amendment(condo must keep good records of votes)
  12. Material Alterations or betterment to the common elements (Condo/Coop)
    If the declaration of condo/coop documents does not specify a procedure the default procedure for alterations requires that 75% of TVI must approve
  13. Shutters & Impact Glass
    • Association may, with majority vote of TVI install hurricane protection even if there is protection that meets or exceeds current building codes
    • Board cannot prevent a member from installing, but may require standard specifications
    • If installed:
    • No vote required for maintenance, repair, and replacement
    • Cost is common expense
    • Member previously install current code compliant protections receive a credit on assesment
  14. Roberts Rules of Order (meetings)
    Permits members to speak up to 10 mins unless docs say different

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