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RE Q&A: Can the Board Inspect Abandoned Condos?

An abandoned condo unit could have problems that impact other owners, like mold, but how can a condo board find out if it can’t contact the absent owner?

NAPLES, Fla. – Question: I am a condo board member and we have an issue with a unit that we are worried is not being cared for by the owner, and we would like to go in there and do a mold inspection at least. The unit is empty (last tenant moved out months ago), and we have not been able to get in touch with the owner.

What rights do we have to go into the unit to check and make sure it does not have mold? – R.P., Tampa

Answer: Pursuant to Section 718.111(5)(b), Florida Statutes, “regardless of whether authority is provided in the declaration or other recorded condominium documents, an association, at the sole discretion of the board, may enter an abandoned unit to inspect the unit and adjoining common elements; make repairs to the unit or to the common elements serving the unit, as needed; repair the unit if mold or deterioration is present; turn on the utilities for the unit; or otherwise maintain, preserve, or protect the unit and adjoining common elements.”

The statute requires that one of two scenarios be present in order to consider the unit “abandoned” for the purposes of the foregoing section. Either (a) the unit is the subject of a foreclosure action and no tenant appears to have resided in the unit for at least four (4) continuous weeks without prior written notice to the association; or (b) no tenant appears to have resided in the unit for two (2) consecutive months without prior written notice to the association, and the association is unable to contact the owner or determine the whereabouts of the owner after reasonable inquiry.

Provided that you have made reasonable inquiry to contact and/or determine the whereabouts of the owner, your situation seems to be exactly as described in subsection (b).

Please note that the statute still requires that except in the case of an emergency, you may not enter the unit until two (2) days after notice of the association’s intent to enter the unit has been mailed or hand-delivered to the owner at the address of the owner as reflected in the records of the association. The notice may be given by electronic transmission to unit owners who previously consented to receive notice by electronic transmission.

Question: We have a matter that will be voted on by all of the owners in my condominium building (not just the board). The association normally sends out “proxies” to get votes from people who will not show up for the meeting but want to vote.

I am told there is a difference between general and limited proxies. Can you please explain the difference and which ones the board should be using? – K.T., Sarasota

Answer: Both types of proxies, limited and general, are documents in which the owner assigns their right to vote to another person who will attend the meeting on their behalf. The difference is that general proxies give the right to vote to the proxyholder on the owner’s behalf however the proxyholder sees fit. Whereas with limited proxies, the owner casts their vote on the proxy document itself, and the proxyholder cannot change that vote or exercise their own judgment in voting on the issue.

Under Section 718.112(2)(b)(2), Florida Statutes, condo associations are generally prohibited from using general proxies for voting (but they may be used for other specific purposes such as establishing quorum), so limited proxies must be used in your case.

In order to ensure that the limited proxies are valid, the proxies must state with specificity the options to either vote for or against the proposed issues, whatever those issues may be, and provide a place for the owner to mark which way they want to vote on each issue.

Please note that the same provisions of the Florida Condominium Act prohibit the use of general or limited proxies to vote in a board election. Elections of the board require the use of ballots rather than proxies, and a specific procedure for such elections is set forth elsewhere in the Florida Condominium Act.

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.

© 2022 Journal Media Group. Avi S. Tryson, Esq., is an Attorney with the Law Firm Goede, DeBoest & Cross, PLLC.