When Is A Special Assessment Improper?

In a condominium association, no one likes paying dues. However, the complaints get even worse when special assessments are levied. In Florida, a special assessment can be levied in a condo association or homeowners’ association (HOA) when an unforeseen expense not included in the budget becomes necessary to pay. When they follow proper procedure, special assessments can be irritating – but sometimes, condo associations make mistakes, which can make the assessment improper or even unlawful. It is important to familiarize yourself with the legalities of this process.

Proper Procedure Counts

Florida law sets out a specific procedure for special assessments, but it is not at all uncommon for that procedure to be challenged. There are three main reasons most condo boards will enact a special assessment: (1) true emergencies, such as building collapses; (2) budget ‘shortfalls,’ and (3) improvements already approved by the membership of the association. Because these are often crucial reasons to ask owners for more money, it is imperative to follow procedure to the letter in doing so.

More often than any other, condo boards render their special assessments unenforceable by failing to properly serve notice to their community. Before any assessment of this kind can be levied, a 14-day notice must be sent to every owner and posted on the property; afterward, an open meeting must be held and minutes recorded which show the professional reports justifying the assessment and expenditure. While paying for repairs after a genuine emergency do not need a vote of the members, all other special assessments generally do.

How Owners Fight Back

Despite the power of a condo association, there are  a handful of ways that an owner can protest what they believe is unfair or improper treatment. A statutory petition is the most common way chosen, arguing that the purpose of the assessment is vague, or that proper notice was not observed. A procedural claim filed quickly will often provoke review, though not always. Another way to challenge the assessment is via a contract claim – after all, a declaration of condominium is essentially a contract between owners, and the assessment may give rise to a breach of contract claim.

The other method of challenging assessments only works in moments where the board has truly acted negligently or even malevolently – a claim of breach of fiduciary duty. Board members have a duty to act in the best interests of the condo association, even if it means placing their own interests in jeopardy. Failure to do that is a breach of the duty, which is actionable. In extreme cases, board members may even face personal liability, though this is uncommon.

Contact A Tampa Condo Association Attorney

It is crucial to ensure that when special assessments are levied, everyone has the chance to react and to challenge, if they believe that the situation warrants it. A Tampa condo association attorney from the Seward Law Office can help your board ensure that you have followed procedure properly and the assessment should be allowed to go ahead. If you have questions or concerns, call our office today to schedule a consultation.