Can condo association force owner to address bedbug infestation?

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: One of the units in our condominium is infested with bedbugs. What recourse does the condo association have to require the owner to deal with this issue? Signed, B.Z.

Dear B.Z.,

Nearly every condominium declaration requires the owner to maintain their unit and to prevent nuisances that may affect or damage other units. So, I absolutely think that you could bring a legal action against this owner to compel them to remediate the bedbug infestation. Further, you have an irrevocable right to enter a unit if necessary to prevent damage to the common elements or other units.

Theoretically, you may be able to use this right to enter the owner’s unit and forcibly exterminate the apartment. The problem is that’s likely impractical, given that bedbugs are difficult to eradicate, the treatment can be very expensive, and it requires the cooperation of the owner to prevent reinfestation. So, I think your best bet is to sue the owner to compel them to remediate the infestation.

Question: I am considering selling my home and purchasing a one-story condominium villa. However, I am concerned about the statutory requirements to fully fund structural reserves. Are one-story condominiums subject to the same requirements as multi-story buildings? Signed, G.C.

Dear G.C.,

A Structural Integrity Reserve Study (“SIRS”) is only required for each building in a condominium that is three stories or greater in height. When a condominium is required to conduct a SIRS, it must collect those funds each year, and the membership cannot vote to waive them like ordinary reserves (which reserves can be waived by a majority vote).

As this law does not apply to one-story condominiums, you should not have a problem. With that said, lots of condominium costs are going up, including insurance; so the absence of mandatory reserves is not necessarily going to spare you from high common expenses.

Question: Our HOA is over 30 years old. When we were in the process of filing our MRTA document, we discovered that our by-laws were never filed with the county clerk. The Declaration of Covenants, Conditions and Restrictions were filed. We would like to amend these by-laws. We have two questions.  First, does the entire membership need to vote on the "new" by-laws or can the Board of Directors simply prepare the document and then file it? And second, will these new by-laws be the first amendment, or the second amendment? Signed, S.W.

Dear S.W.,

The Marketable Record Title Act, FS 712, loosely provides that HOA covenants (like many other covenants) need to be either preserved or revitalized every 30 years. That is not exactly how it works, but it’s the easiest explanation for laypersons, without going into a lot of detail about things like the root of title for each home and how an actual MRTA analysis works. Importantly, the statute only applies to covenants — bylaws do not expire and never need to be preserved or revitalized.

Your bylaws, like your articles of incorporation, are rules and procedures governing how your corporation operates. I know of many communities where the bylaws were never recorded in the public record. Under the current law amendments to governing documents (including bylaws) must be recorded in the public record.

However, this was not always the case, and the fact that your bylaws were never recorded does not necessarily invalidate them.

Assuming that they have never been amended in the past, I would suggest simply recording them in their current form, so that there’s a copy in the public records. This would not require a membership vote — the board can simply decide to record them. If they’ve been amended, I would record the bylaws and the amendment together —and that also would not require a membership vote. This is just memorializing things that already happened.

A new amendment, in contrast, requires whatever membership vote may be required in the bylaws themselves—or, if the bylaws are silent, the approval of 2/3 of the voting interests. It is possible, but not likely, that the bylaws can be amended by the board alone, but it is much more likely that it requires a membership vote. Once the membership approves the new amendment, you can then record that in the public records.

If I understood your question, and you have never previously amended the bylaws, then this new amendment would be the first amendment to the bylaws (although that nomenclature really has no legal significance—it’s just for form). If the bylaws have previously been amended, even if that amendment was never recorded in the public records, the new amendment would be whatever number follows the previous.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to [email protected]. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Can condo association force neighbor to address bedbug infestation?