JB News

Here's some late-breaking news and important information from around the Jupiter Bay Community.

Prominent Attorney Confirms 100% Owner Approval Required for West Merger

Ryan Poliakoff is an attorney who publishes a weekly article in the Palm Beach Post.  Following is my question to Ryan and his answer published in the 9/18/22 Sunday paper:

Question: We are a multi-condominium association comprised of eight individual associations. Six of the eight individual associations consist of similar buildings, each with 32 units. These six associations are considering combining into one association. If we were to bring their reserves, fund balances and maintenance fees into synchronization (i.e., same values), what would it take to combine them? They all share the same bylaws. All six declarations of condominium are very similar or could be made similar, and it takes a 75% owner vote to amend them. Condo law suggests that the associations could be combined with less than 100% owner vote, but since their proportional share of common expense would change, would that dictate 100% approval of all 192 owners? Their declarations don’t appear to define voting interest approvals for changing the proportions or percentages by which owners share common expenses. Signed, P.S.

Dear P.S., You use the term “association” in several different ways in your question, but what I think you are saying is that there is one association (the corporate entity tasked with managing and maintaining the property) that governs eight individual condominiums. Six of the eight condominiums, which are largely identical, would like to combine into a single condominium so that they share expenses.

I do think, unfortunately, that would be practically impossible. As you pointed out elsewhere in your letter, Section 718.110, Fla. Stat. provides that no amendment to a declaration may (among other things) alter the appurtenances to the unit or change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns common surplus without 100% approval of the owners of the units and all record lien holders.

That is unlikely to happen except in the smallest condominiums. You effectively would need to terminate five of the six condominiums and amend the declaration of the sixth to integrate all of the other properties and units.

Condominium common elements are owned jointly and severally by the individual unit owners, so you are not only changing that appurtenant ownership, but also the shares of the common expenses of all of the units. As such I think it triggers the 100% approval rule and any single holdout would prevent the merger. You are already a multi-condominium association, which in this situation I think is the best you can achieve, in terms of saving costs and operating expenses.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, 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.

A Single West Association?

Jupiter Bay currently has 8 associations: East, Villas, and each of the 6 West buildings. There is recent discussion regarding combining the 6 West associations into one. This would simplify our accounting structure, normalize fees, and provide larger combined reserves, reducing the financial impact of individual building repairs.

Financial consolidation of the 6 West buildings/associations requires addressing 1) quarterly maintenance fees, 2) operating accounts, 3) reserve accounts and 4) the Declarations of Condominium:

  1. Since each building has the same number of units (32), averaging the 6 individual maintenance fees into a new fee would resolve the maintenance fee issue.
  1. Differences between income and expense for each building produces negative or positive fund balances. These imbalances within the operating accounts need to be addressed so that all 6 buildings have the same (or zero) fund balance.
  1. Reserve account balances need to be brought in synch, either at the individual account level or in aggregate. The simplest approach is to pick a single reserve account, such as concrete restoration/spalling, and add special assessment funds from each building into this account so that total reserve balances are equal. This would impose a financial burden on West buildings with low reserves.
  1. Making the individual Declarations the same may be the most difficult task since one of the associations (West C) has different provisions than the others. West C building has the following unique terms:
    • Lease period of at least 30 days. 10-day exception for Thanksgiving, Christmas & Easter.
    • Maximum of 3 rentals per calendar year.
    • Transfer fees of $100 for sale of unit, $75 for lease, and $25 for guest of owner unless relative or owner present.

Also, there's the issue of obtaining the necessary number of unit-owner votes to approve the merger. Florida Statute 718.110(7) says: The declarations, bylaws, and common elements of two or more independent condominiums of a single complex may be merged to form a single condominium, upon the:

  • Approval of such voting interest of each condominium as is required by the declaration for modifying the appurtenances to the units or changing the proportion or percentages by which the owners of the parcel share the common expenses and own the common surplus;
  • Approval of all record owners of liens; and
  • Recording of new or amended articles of incorporation, declarations, and bylaws.

Declarations for the Jupiter Bay West buildings don't define voting interest approvals for changing the proportions by which owners share common expenses.  Because of this, approval by 100% of the owners would probably be required. (See above posting.)

Considerable effort will be needed to address the 4 items listed above and obtain approval of unit owners in each building. These owners will need to agree to pay special assessments to bring their building into synch with other buildings which have higher (or zero) fund balances and higher reserve account balances. Secondly, West unit owners will need to accept, or agree to give up, rental restrictions that are in the West C Declaration.

Jupiter Bay Election 2022

Congratulations to Jim Kalec, Don Spieller and Frank Kania for their election to Jupiter Bay's Board of Directors at the Association's March 22nd Owners' Meeting. All three were elected to a two-year term. Jim and Don are continuing their positions as President and Treasurer respectively. Frank will be the Association's new Secretary, replacing Sheila McGinn. Please reference the Board-of-Director (BOD) page of this website for additional information.

Jupiter Bay -- A Rental Community?

Jupiter Bay has extremely lax rental policies. Besides requiring vehicle parking permits, the Association only restricts the size of pets, type of vehicles and number of unit occupants. Recent Declaration changes have further loosened vehicle restrictions, permitting additional rentals. Finally, except for West C building, no lease approvals nor transfer fees are required. This results in an environment where any individual, company, or agency can purchase any number of condominium units without Association oversight and rent these units for any number of days to anyone they choose, either directly or through any agency. The Association has no right to review or approve purchasers, tenants, or leases.

Because units are rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, Jupiter Bay is classified under Florida Statute 509 as a “Transient public lodging establishment”. This classification increases our liability insurance costs.

Current trends show that Jupiter Bay is becoming more of an investor/tenant transient community instead of a primary/secondary home community, and the number of investor-owned units has begun to exceed the number of non-rented units. Also, the average number of rentals per unit has increased and rental length has decreased, trending toward a hoteling community.

While investors are benefiting from this shift, primary/secondary homeowners are burdened with:

    • increased crime/vandalism,
    • additional maintenance and insurance expense,
    • extra utility cost (water, sewerage, and trash removal),
    • fewer board candidates, and
    • office staffing costs for processing leases and parking permits.

There are various measures that the Association can take to protect the community, reduce rentals, and/or compensate for the extra costs. Several of these measures would likely be accepted by the membership but others are more controversial. Following is a partial list of possible Declaration changes:

  1. To avoid ownership for purely investment purposes, prohibit ownership by a corporation, limited liability company, partnership, trust, or other entity or company. Allow certain exceptions to ensure that owners can use these types of entities for their estate planning purposes, to ensure that the rights of mortgagees are not adversely affected, and to ensure the association still has the authority to purchase units because of foreclosure or in other appropriate circumstances.
  1. Restrict the number of units that can be owned by a person or entity.
  1. Bar owners from renting in the first few years of ownership.
  1. Enforce the 2002 Arbitrator-approved requirement that leases be in writing and filed with the association prior to occupancy by the tenant, not less than 3 business days in advance of the intended occupancy.
  1. As permitted under FL Statute 718.112(2)(i), charge a $100 per applicant, other than husband/wife or parent/dependent child, transfer fee for unit rentals and for unit purchase title transfers. Do not charge for renewal of a lease or sublease with the same lessee or sublessee.
  1. Require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of 1 month’s rent, into an escrow account maintained by the association. The security deposit will protect against damages to the common elements or association property.
  1. Add restrictions on number of pets and noisy and raised-chassis cars.
  1. Require association approval of transfers of title to units. Allow rejection based on “good cause,” such as the following:
    • A record of financial irresponsibility,
    • A guilty plea or conviction of a crime of moral turpitude,
    • A history of being a “bad tenant”,
    • A false statement on the application, and
    • Failure to comply with the board’s request for a personal interview.
  1. Consider amendments to the declaration limiting leasing as follows:
    • Disallow renting or leasing of a unit for a 12-month period following the closing date (or date of recorded deed) of a sale of that unit.
    • Require leases to be for a minimum of 30 days or one month whichever is longer.
    • Restrict owners to a certain number of rentals or leases per calendar year.

Note that an amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of the amendment.

This "current investor" exception is limited to condominium associations. In 2021, the homeowner association's statute (F.S. 720) was amended to say that "governing documents that prohibit or regulate rental agreements for a term of less than 6 months or prohibit the rental of a parcel for more than three times in a calendar year shall apply to all parcel owners". (Current owners are not grandfathered.)

Parking Lots are Common Elements

The Association's attorney was wrong when she said at the 3/19/21 board meeting that Jupiter Bay Condominium Association’s parking lots were not common elements. Our Declaration is quite clear on this matter as the following shows:

  • 2.5     Common Elements shall include the tangible personal property required for the maintenance and operation of the condominium, even though owned by the Association, as well as the items stated in the Condominium Act, and all those areas of "the lands" not included in the unit.
    • (a) Common elements shall also include the land upon which the improvements described herein are located and any other land included in the condominium property, whether or not contiguous.
  • -
  • 3.6 (c)   Improvements: Commonly Used Facilities. The Condominium includes ground level parking areas for automobiles located on easements granted to Unit Owners for that purpose; roads for ingress and egress; various gardens, and landscaping; and other facilities which are part of the common elements; and shall include, without limitation, any interest in any real or personal property acquired by demise, grant or otherwise.
  • -
  • 3.8     Common Elements. Common elements include land and all other parts of the Condominium not within the units and include, but are not limited to, the following items as to which the Association shall have the powers indicated:
    • (a)  Automobile Parking Areas and Streets. The Association shall regulate, maintain, control and have full authority with respect to the use of all parking areas and roads and streets. Automobile parking will be made available to Unit Owners so that each unit will be entitled to one (1) parking space without charge.

Changes to the common parking areas could be considered material alterations requiring a higher unit owner approval level. Restricting certain parking spaces for “trucks only” usage could make these spaces limited common elements for exclusive use by unit residents having trucks.  Here is the relevant declaration language:

  • 2.13 Limited Common Elements means and includes those common elements which are reserved for the use of a certain unit or units to the exclusion of other units.
  • -
  • 6.2 (b) Common Elements: Alteration and Improvement. After the completion of the improvements included in the common elements of this condominium contemplated by this Declaration, there shall be no alteration nor further improvement of the real property constituting said common elements ex­cept in the manner and on the conditions set forth in Paragraph 6.1 (c) of this Declaration of Condominium. Any such alteration or improvement shall not interfere with the rights of any unit owners without their consent.
  • -
  • 6.1 (c) Alternation and Improvement.   Any change, alteration, addition or deletion described above may be made only after obtaining in writing the following approvals in the following order:
  • (1) Not less than eighty percent (80%) of the Directors of the Condominium Association at a meeting called for that purpose: and
  • (2) Not less than eighty percent (80%) of the owners of all of the condominium units governed by the Association at a meeting called for that purpose.

Please see the "Ownership" page of this website for additional information.  It is inappropriate for association attorneys to challenge homeowner comments with erroneous information.

Board Decisions

Condominium associations are governed by multiple laws, including both the Condominium Act (Chapter 718) and the Not-For-Profit Corporation Act (Chapter 617). Chapter 718 takes precedence over Chapter 617, but if the Condominium Act is silent, then the corporate law controls.

Neither the Condominium Act nor Jupiter Bay’s bylaws require every board decision to be made at a board meeting; however, several alternatives are ruled out:

  1. Informal Physical Meetings.  The board cannot meet informally to make association decisions.  Florida Statute 718.112(2)(c) says “Meetings of the board of administration at which a quorum of the [board] members is present are open to all unit owners.”
  1. Phone Meetings. The board cannot meet via phone or zoom to make association decisions. Florida Statute 718.112(2)(b)5. says “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum.”
  1. Email or Text Correspondence. The board cannot use email to make decisions. Florida Statute 718.112(2)(c) says “Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.”

How can the Board make decisions on association matters? There are only two options:

  1. Hold a scheduled Board Meeting that “must be noticed and open to all unit owners.”
  1. Use signed “unanimous” written consents. Florida’s Not-For-Profit Corporation Act, Section 617.0821, states that, “unless the articles of incorporation or the bylaws provide otherwise, actions required or permitted to be taken at a board meeting may be taken without a meeting if the action is taken by all members of the board by signed written consents.”

The written consent procedure to approve board decisions should rarely be used and only when those decisions are noncontroversial. Written consents must be included in the association’s official records.

Excluding this single exception, all board decisions must be made at board meetings through board member voting.

The next obvious question is which actions require board member voting and approval? The answer is 1) Robert’s Rule requirements for meetings and 2) every significant matter brought before board members that requires thought, investigation, analysis, and a decision. A partial list of these items includes:

  • Establishment of a meeting quorum.
  • Prior meeting minute approvals.
  • Budget approval or budget/fee changes.
  • Special assessments.
  • Expenditures involving non-recurring items regardless of whether they are budgeted or their cost.
  • New vendor selections or vendor changes.
  • Rule and regulation changes.
  • Landscaping or other property improvements or changes.
  • Changes in insurance coverage, limits, or deductibles.
  • Meeting adjournments.

A record of all meetings of the board must be kept in written form or in a form that is capable of being converted to written form. The minutes must record the vote of each member of the board present and voting on matters decided at the meeting. The minutes become official association records and must be permanently maintained.

What information needs to be included in the meeting minutes?

  • The answer is “a record of all board votes which constitutes all decisions made by the board.

All decisions must be made at board meetings and recorded in meeting minutes to have an official permanent record of them. Otherwise, the association has no evidence or proof of actions taken or decisions made by the board. This violates Florida statutes and can cause legal problems for an association.

Adherence to FL Statutes

Licensed Florida Community Association Managers (CAMs) are responsible for assuring compliance with Florida statutes and the Association’s governing documents. They are to advise the Board regarding legal requirements for conducting Association business.

If a Board is unfamiliar with regulations and provisions of Florida law, further assistance and intervention by the licensed Property Manager may be required. These areas include Board Decisions, Proper Noticing and Official Records. Here’s a summary of the requirements:

  • Board Decisions – All Board decisions must be made at a noticed board meeting open to all association members.
  • Proper Noticing – An amendment to rules regarding unit use MUST be noticed at least 14 days before the meeting.
  • Official Records – Most Association records are classified according to Florida Statutes as “Official Records” and are available to all owners for review and copying.

Jupiter Bay Website Enhancements

Significant enhancements were made to the Association's website: https://jupiterbaycondoassoc.com.

The following pages were added to the Public Section of the website:

  • Welcome – Introduces the Association’s management, website, governing documents, and office location/hours.
  • Location – Describes the Association’s location and the area’s beaches, restaurants, entertainment, shopping, and other activities.
  • Staff – Lists the Board of Directors, office staff, maintenance staff and Building Captains.
  • Activities – Presents activities available to all Jupiter Bay residents.
  • Rules – Provides a summary of the Association’s Rules & Regulations applicable to all residents.
  • FAQs – Lists the Florida Statute required Frequently Asked Questions and Answers pertaining to our Association.

The "Internal Documents" section was redesigned to make it easier to find what you're looking for.

Here's the new "Internal Documents" structure:

  • Annual Election Documents
  • Assessment Payments
  • Bids & Contracts
  • Board Meetings
    • Board Meeting Agendas
      • 2019 Agendas
      • 2020 Agendas
      • 2021 Agendas
    • Board Meeting Minutes
      • 2019 Minutes
      • 2020 Minutes
      • 2021 Minutes
  • Committees
    • Committee Descriptions
    • Committee Notices/Agendas
    • Committee Minutes
  • Directory of Owners
  • Financial Information
    • Annual Budgets
    • Annual Financial Audits
    • Monthly Financial Reports
      • 2018 Monthly Financials
      • 2019 Monthly Financials
      • 2020 Monthly Financials
      • 2021 Monthly Financials
  • Forms
  • General Information
    • Board Member Information
  • Governing Documents
  • Insurance Policies
  • Newsletters

Triton Welcome Letter (JB BOD)

For those unit owners who were unable to attend our September 30, 2020 board of directors meeting, we wanted to provide a recap for you. The Jupiter Bay Board of Directors Organizational Meeting was held on August 28, 2020 and over that 32-day period many areas were evaluated.

The top priority was to review the property management company to ensure that our community was receiving the best possible service at a reasonable cost. Don Spieller and I [Jim Kalec] reached out to unit owners for feedback while conducting a review of Campbell Management services. Several unit owners complained that weekend coverage was insufficient. It involved calling an 800 number and waiting for a response for more than a couple of hours. There was an elevator breakdown in B East over Labor Day weekend and many calls were made to the 800 number. We received feedback about eight hours after the first call. During the month of September, we interviewed three property management companies: Triton, Castle and Campbell.

Our evaluation was completed a few days before the September 30, 2020 board of directors meeting. All three companies are exceptionally good property management firms. The most critical difference is that Triton has owners in senior management positions that are actively involved in the business. Paul Licata and Mark Wade have twenty years of experience in the industry and they will be at Jupiter Bay monthly to provide the necessary support for a property of our size. It was important that the size of this firm match the footprint of Jupiter Bay. This boutique firm has a 24/7 emergency response staff; no 800 number, just a rapid response team ready to assist Jupiter Bay residents during all 168 hours in the week 52 weeks a year. They have proven management systems and state of the art technology that includes the Tops One Connection which is a web service portal that offers both a homeowner and board member interface. This hands-on approach coupled with local ownership provides Jupiter Bay with top to top management communication that can address issues and concerns thoroughly and effectively in a short period of time.

Christopher Sands is our new property manager at Jupiter Bay. He has managed properties that are similar in size to ours. His extensive property management experience at Triton and Seacrest will serve us well in the critical months and years ahead. Jupiter Bay needs a lot of work on our landscaping, irrigation system, elevators, asphalt, and spalling. Chris will be working closely with the board and maintenance staff as we tackle our infrastructure issues.

In closing, let us welcome Triton Property Management and Chris Sands to Jupiter Bay! We have a beautiful property in Jupiter, Florida that is located only 800 yards from the beach and across the street from Harbourside. We pledge to work together with all unit owners to revitalize and reinvigorate this paradise we call home.

Jupiter Bay Board of Directors

New Property Manager & New Management Company

Effective September 30, 2020, the Jupiter Bay Condominium Association announced cancellation of its contract with Campbell Property Management and the commencement of a new agreement with Triton Property Management.

The new 12-month agreement provides similar terms to the prior one, with fees of $1,000 per month and cost-plus pricing for staff members as follows:

  • 25% for experienced fulltime Property Manager
  • 25% for on-site Receptionist and Administrative Assistant
  • 31% for 3 full-time and 1 part-time Maintenance Technicians.

The change provides Jupiter Bay with improved service, experienced property management, more senior-management participation, state-of-the art technology, 24/7 rapid emergency response, and an improved website. Triton is a smaller, locally owned company that provides individualized support.

Christopher Sands is the Association’s new Property Manager.  He is a licensed Community Association Manager (CAM) who has managed various Homeowners (HOA) and Condominium Association properties in Palm Beach County for both Triton and Seacrest. He has had responsibility for properties with over 1,100 units and budgets exceeding $3.0 million. Additionally, Chris has business startup experience and has held positions on the City of Palm Beach Gardens Police Department. We welcome Chris to Jupiter Bay.

Petitioning the Board

If unit owners within a condominium association feel that the association’s board of directors is not being responsive in addressing their issue(s), they have a mechanism to petition the Board to act. Members desiring to have one or more specific items of business addressed can, within rights granted within Florida’s condominium statutes, force the Board to deal with the item(s) within a reasonable timeframe.

Florida statute 718.112(2)(c)1 says that “If 20 percent or more of the condominium association’s voting interests petition the board to address an item of business, the board must place the item on the agenda at its next regular board meeting or at a special meeting called for that purpose”. Under either alternative, the item must be considered by the Board within 60 days of the receipt of a petition.

This assures that the Board discusses the item(s) included within the petition at an open board meeting but does not guarantee that the Board will agree to the arguments presented or conclusions reached within the petition. However, this mechanism provides one more important way for the association’s membership to be heard and for the Board to be forced to present and discuss owner issues and concerns.

Exercise Your Right to Vote

All Jupiter Bay members have the right to vote in an election, and the Association is obliged to make voting as easy as possible. Anyone requesting a ballot, whether or not the association had mailed one to them, should receive one, and requests for alternate mailing addresses should be honored. For owners who hadn't sent their ballot in prior to the meeting, ballots need to be made available at the Annual Owners meeting.

According to Florida Statute 718.112(2)(d) and Florida Administrative Code 61B-23.0021, the second Annual Meeting notice must be 1) hand delivered, 2) mailed (to the address last furnished to the association), or 3) electronically transmitted to each unit owner not less than 14 days nor more than 34 days before the election. The annual meeting notice must also be posted on the condominium property.

The second Annual Meeting notice mailing must consist of:

  • The Annual Meeting notice and agenda.
  • Candidate information sheets.
  • A return (outer) envelope addressed to the person or entity authorized to receive the ballot. The exterior of the outer envelope indicates the name of the voter, and the unit or unit numbers being voted, and it contains a signature space for the voter.
  • A smaller (inner) envelope to be completed and returned within the outer envelope.
  • A ballot containing, in alphabetical order by surname, the names of the candidates running for the Board. This ballot is to be completed by the eligible voter and sealed within the inner envelope.

The second notice and accompanying documents must not contain any communication by the board that endorses, disapproves, or otherwise comments on any candidate. No ballot shall indicate which candidates are incumbents on the board. No write-in candidates are permitted. No ballot shall provide a space for the signature of or any other means of identifying a voter.

Elections are decided by a plurality of ballots cast. There is no quorum requirement; however, at least 20 percent of the eligible voters must cast a ballot in order to have a valid election. A unit owner may not authorize any other person to vote his or her ballot. Ballots are returned within the inner envelope, which is contained within the outer envelope. The inner envelope has no markings to identify the owner, whereas the outer envelope contains the owner’s name, unit number and signature. Each inner envelope shall contain only one ballot, but if a person is entitled to cast more than one ballot, the separate inner envelopes required may be enclosed within a single outer envelope. Outer envelopes, containing the inner envelopes and ballots, shall either be mailed or hand delivered to the association before or at the Annual Meeting. Upon receipt by the association, no ballot may be rescinded or changed.

On election day, either immediately before or at the Annual Meeting, an impartial committee, which cannot include current board members, officers and candidates for the board, verifies the outer envelope information against the eligible owner roster, and the committee checks off the units that have voted. If the committee meets prior to the Annual Meeting, the committee meeting must be noticed (posted) 48 hours in advance and must occur on the same day as the Annual Meeting.

As the first order of business at the Annual Meeting, ballots not yet cast are collected. Upon the commencement of the opening and recording of the outer envelopes at the Owners Meeting, the polls are closed, and no more ballots are accepted. The business of the meeting may continue during this process.

If the committee receives multiple outer envelopes for the same unit or if the outer envelope is not signed, then the vote is marked “disregarded” and separated from the other valid votes. Ballots for properly cast votes are placed in a receptacle. Once all outer envelopes have been opened and the number of voting owners is tallied, the inner envelopes are opened, and the ballots are counted. If any inner envelope contains more than one ballot, the ballots are disregarded and not counted. The impartial committee tallies and reports, to the Owners Meeting Chairperson, the vote count for each candidate for ballots that have not been disregarded. All envelopes and ballots, whether disregarded or not, shall be retained with the official records of the association. See the Elections & Voting page of this website for additional information.

Incidental Damages

The “Alterations” and “Insurance” pages of this website document approval requirements and responsibilities for altering and repairing common elements, limited common elements (e.g., owner balconies) and owner units. For repairs made by the association to an owner’s unit and balcony, responsibility for “incidental” damage is often questioned. Incidental damage is defined as: damage caused by the association’s exercise of its maintenance, repair, and/or replacement responsibility. Damage could include removal of owner alterations and improvements such as floor tile, hurricane shutters, glass enclosures, etc.

Answers to responsibility questions largely depend on whether the association’s governing documents include an “incidental damage" clause, how this clause is written, and the specific circumstances. The damage repair and replacement obligation of the association may be limited to damage caused to the unit and to the original developer-installed limited common elements (e.g., balconies) or it could include damage to any owner improvements including balcony alterations.

Paragraph 6.1(a)(3) of Jupiter Bay’s Declaration says, “All incidental damage caused to a unit by such work [association repairs/replacements] shall be repaired promptly at the expense of the Association.” This applies exclusively to damage caused by Association work within a unit repairing items that the Association is responsible for, such as drywall replacement. Paragraph 6.1(b)(1) says that the Unit Owner is responsible “To maintain, repair and replace at his expense, all portions of his unit except the portions of his unit to be maintained, repaired, and replaced by the Association.”

Since our governing documents contain incidental damage language specific to units and has no similar language for limited common elements, our Association is not responsible for incidental damage caused to owner modifications to limited common elements. In other words, when doing concrete restoration work, the Association is obligated to restore balconies to their original as-built condition, and the unit owner is responsible for all expenses associated with the removal and reinstallation of owner alterations. Similarly, the Association will likely not be responsible to repair any damage to any owner alteration to a unit where the declaration required association approval and the owner failed to obtain approval prior to the alteration.

Generally, the association’s repair obligation is limited to actual damage caused to the unit because of its maintenance, repair, and replacement obligation. If a unit owner is required to vacate their unit for the Association to effectuate repairs, the Association is not generally responsible to reimburse the owner for associated costs.

Finally, If the Association receives a report from an expert advising that certain repairs must be performed, and the Association fails to act, the Association may be responsible for the costs of any damage to the units caused by its failure to act.

Note that opinions expressed in this article are based on research and personal understanding. They do not reflect legal interpretation, and the Association should consult legal counsel for specific inquiries regarding the association’s responsibility for incidental damage.

Association Attorney Contradicts Bylaw 6.1

In a 9/6/22 email to a unit owner and the Association’s president, our Rosenbaum attorney said that FL statute 718.112(2)(a)1 and the Association’s Bylaws do not provide for appointment of an officer who is not a board member. This interpretation could limit participation by non-board members in special important roles (e.g., budget preparation, vendor negotiations, contract reviews, etc.)

A response was sent from the author of this website listing text from the FL statutes and our Bylaw 6.1 refuting the attorney’s opinion. The statute says: “Unless prohibited in the bylaws, the board of administration may appoint other (besides president, secretary & treasurer) officers and grant them the duties it deems appropriate”. The Association’s Bylaw 6.1 says:

  • “The executive officers of the Association shall be a President, a Vice President, a Secretary, and a Treasurer, (none of whom need be Directors), all of whom shall be elected by the Board of Directors.
  • The Board of Directors from time to time shall elect such other officers and designate their powers and duties as the Board shall deem necessary or appropriate to manage the affairs of the Association. Officers need not be Unit Owners.”

To confirm my understanding of the statute and bylaw text, I presented the “non-board member officer” question to a well-recognized FL condominium law expert and to an attorney (Ryan Poliakoff) who publishes a weekly article in the Palm Beach Post. The law expert said, “based on your documents and the statute, the board can appoint the person you mention as an officer of the corporation and bring that person under your D and O insurance if your insurance provider agrees.” Attorney Poliakoff said, “the vast majority [of governing documents] allow some or all officers to be non-owners” and that “an association could even hire a [non board member] person to serve as treasurer”. Click Here to obtain the full text of his response: Poliakoff response.

In summary, FL statutes and our Bylaw 6.1 says that the Board can elect officers, who are not board members (and even not unit owners), to assist in “managing the affairs of the Association”. Please reference the Roles & Functions page of this website for additional information on Association Officers.

So far, the Association’s attorney has not issued a correction to her erroneous legal opinion.

No Restrictions on Owner Behavior at JB Meetings

A recent Palm Beach Post article by Ryan Poliakoff, co-author of "New Neighborhoods -- The Consumer's Guide to Condominium, Co-Op and HOA Living" pointed out problems caused by the Board's removal on 9/20/21 (see below) of the Association's "Recording & Speaking at Meetings" rule #41.

Florida Statute 718,112(2)(c) says that "A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements."

The Association's previous rule #41, based on Florida Administrative Code recommendations, established the following:

  • Unit owners' right to participate in and speak at all board and owner meetings with reference to all designated agenda items.
  • Board's right to limit each owner’s comments to 3 minutes and disallow subsequent comments from the same owner until others have the opportunity to express their viewpoint.
  • Unit Owners' requirement to give advance notice to the board of their intention to videotape or tape record a meeting and to not move about the meeting room while recording.
  • Unit Owners' restriction requiring audio and video equipment to be set up before the meeting starts and prohibiting distracting sound or light emissions from the equipment.

Without these provisions and restrictions, and several others that need to be added, unit owners are unrestricted on:

  • How long and often they can speak at Association meetings,
  • Whether they can deviate from the agenda items,
  • Their ability to disrupt meetings with video recordings and other means, and
  • Whether they can share meeting recordings and videos and post them on websites.

The Association's "Recording & Speaking at Meetings" rule needs to be expanded and added back to Jupiter Bay's official rules & regulations.

Condo Purchases Impacted by New Lending Requirements

As a result of the Champlain Towers South collapse, Fannie Mae and Freddie Mac have imposed new "temporary" additional requirements for condominium mortgages. These new additional requirements make it harder for existing condominium unit owners to refinance and for new buyers of condominium units to obtain mortgages.

The Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) are government-sponsored enterprises that work with local lenders to make mortgages available to low and moderate-income borrowers. Fannie Mae purchases mortgages from larger, commercial banks, while Freddie Mac buys them from much smaller banks. Together they finance up to 90 percent of all residential mortgages.

Both Fannie and Freddie package purchased loans into mortgage-backed securities for sale to investors on the secondary mortgage market. Both have requirements which must be met before they will buy a mortgage from a lender. Lenders rely on condominium associations to supply information addressing these requirements. An association’s compliance with these requirements is analyzed by the local lender and likely further analyzed by Fannie Mae or Freddie Mac as a part of its bundled loan purchase. (Jupiter Bay is believed to be compliant.)

On 10/13/21, Fannie Mae issued Lender Letter LL-2021-14 entitled “Temporary Requirements for Condo and Co-op Projects,” with a new questionnaire effective January 1, 2022. Fannie Mae’s requirements are documented in the following Bulletin: Fannie Mae Lender Letter

Then, on 12/15/21, Freddie Mac issued Bulletin 2021–38 entitled “Temporary Condominium and Cooperative Project Requirements and Topic 5600 Reorganization,” with its Questionnaire effective February 28, 2022. Freddie Mac’s Bulletin can be found at: Freddie Mac Bulletin

Fannie Mae now requires an association to reserve at least 10% of its total annual budget for reserves regardless of whether a reserve study was performed. Moreover, Fannie Mae will no longer issue project eligibility waivers for significant deferred maintenance or for projects subject to large special assessments. While Freddie Mac has strict requirements too, it is not requiring that 10% of the association’s budget be allocated to reserves.  If the contribution to reserves is less than 10% of the total annual assessments and is based on the reserve contribution amount from a reserve study, Freddie Mac will allow the loan. (Note that in 2022, 26.8% of the Jupiter Bay Condominium Association’s budget is for reserves.)

Questionnaires are used to determine whether associations meet the new and currently existing requirements. Answers determine whether a borrower can obtain a condominium mortgage backed by Fannie Mae or Freddie Mac.  A local lender can submit a project waiver request (PWR) for ineligible associations. If Fannie Mae or Freddie Mac will not buy the loan from the local lender, the lender is not likely to make the loan.

Fannie Mae and Freddie Mac use the same extensive 5-page questionnaire. For Fannie Mae, it’s called Form 1076, and for Freddie Mac, it’s form 476. Here’s a link to the form: Condo_Questionnaire_Form

Completion of the Freddie Mac and Fannie Mae questionnaire needs to be coordinated with board members, the property manager, and, importantly, the association’s attorney.  The costs associated with completing the questionnaires can be charged to the buyer or, since the questionnaire benefits the entire association by providing for a viable market for all new purchasers, the expense could be deemed a common expense shared by all members of the association.

Per FL Statute 718.111(12)(e)1., "The association or its authorized agent may charge a reasonable fee to the prospective purchaser, lienholder, or the current unit owner for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney’s fees incurred by the association in connection with the response."

Swaysland Concrete Repair Investigation

Swaysland Professional Engineering Consultants, Inc. was contracted to perform an inspection of 50% of the private balconies and public walkways at all fourteen (14) building of the Association. The inspections were performed during June, July, September, October and November of 2020.

The purpose of the inspections was to identify the concrete deterioration occurring at the private balcony and public walkway slab top surfaces, bottom surfaces and edges, building walls and columns to determine an appropriate method of repair and protection. The purpose of inspecting 50% of the balconies was in order to provide a cross section of the damage at each building and identify trends in repair.

Swaysland's work culminated with publication of a Concrete Repair Project Investigation Report on December 4, 2020. Here's a summary of their findings:

Building Total Severe Moderate Minor None Walkways
West A 32 1 12 4 15 4 Moderate
West B 32 1 18 8 5 4 Moderate
West C 31 3 21 5 2 2 Severe, 2 Moderate
West D 30 0 13 6 11 1 Severe, 3 Moderate
West E 32 0 14 3 15 1 Severe, 3 Moderate
West F 32 1 15 5 11 4 Moderate
East A 19 0 1 7 11 5 Minor
East B 20 1 5 4 10 5 Minor
East C 20 0 3 8 9 5 Minor
East D 8 0 2 3 3 2 Minor
Villas 28 2 9 12 5 1 Severe, 11 Moderate, 4 Minor
TOTAL 284 9 113 65 97

Truck Parking at Jupiter Bay

Jupiter Bay's Declaration (prior to 6/25/21) prohibits trucks from being "used, operated, stored or parked in any unit, parking area, street, or other portion of the condominium property; provided, however, that this provision shall not preclude the use of delivery trucks or other trucks, equipment or machinery necessary for the maintenance, care or protection of the condominium property".

This provision of the Association's Declaration has been consistently enforced for over 30 years through:

  • Issuance of parking permits to only authorized vehicles (no trucks), and
  • Daily ticketing of vehicles without valid parking passes.

Following are the FACTS regarding Truck Parking at Jupiter Bay:

  1. The Association’s Declaration, paragraph 10.4, prohibits Jupiter Bay unit owners from bringing “trucks, vans, pickups, tractors, recreational vehicles, or loud or noisy vehicles” onto the condominium property.
  2. This provision does not “preclude the use of delivery trucks or other trucks, equipment, or machinery necessary for the maintenance, care or protection of the condominium property”.
  3. Everyone who purchases a unit at Jupiter Bay receives a copy of the Association’s governing documents, and as a condition of ownership, agrees to abide by the provisions of these documents. When an owner transfers their unit to a renter, the renter assumes all owner usage rights and responsibilities regarding compliance with the Association’s governing documents.
  4. To assure compliance with this 10.4 Usage provision of the Declaration, the Association requires all residents (owners, guests, and renters) to register their vehicle(s) with the Association office and receive a parking permit. Parking permits are not issued for illegal vehicles, including pickup trucks.
  5. For over 30 years, the Association has consistently followed the practice of issuing parking permits and tagging illegally parked vehicles. As a job requirement, our security guards tag vehicles (including trucks) without valid parking permits. Whenever the Association learns of resident truck or other vehicle without a valid parking permit, a parking violation is issued. In nearly all instances the issuing of this violation is sufficient to have the resident remove their vehicle from Association property without needing to tow.
  6. Upon advice of council, the Association’s Board of Directors, at a March 1, 2017 Board Meeting, unanimously passed a motion assuring that “we will enforce paragraph 10.4 of the Association’s Declaration through the issuing of parking violations, towing, and owner fines regardless of time of day.” All rental agencies were notified in writing of this vote.
  7. The Association has hundreds, possibly thousands, of examples of the “no truck” rule enforcement. However, without 24 X 7 parking lot monitoring and with construction vehicles on our property, there will always be circumstances where illegal resident trucks are not identified and tagged.
  8. Only one agency has consistently rented to truck owners causing most of the illegal truck parking issues. This agency has lobbied our owners and attorneys for years to remove all remaining rental restrictions.
  9. Employees and customers of the Twisted Tuna Restaurant are allowed, according to their lease terms, to park in designated areas of Jupiter Bay’s common property. There are no restrictions on the type of vehicles permitted. According to Paragraph #9 of the Restaurant’s Lease Agreement, these terms override provisions of the Association’s governing documents.
  10. Any amendment to paragraph 10.4 of the Association’s Declaration, which changes or clarifies vehicle parking restrictions, would have the same enforcement problems that the Association currently has. Without 24 X 7 parking lot monitoring, the Association could always be accused of selective enforcement of any vehicle parking rules. Also, without Association inspection of every resident vehicle, it would be impossible to know whether to issue a parking permit.
  11. The truck parking provisions in Jupiter Bay’s Declaration can be changed with a 75% affirmative vote of Association members; however, it would be nearly impossible to enact changes to the Restaurant Lease Agreement. It is the Board’s duty to strictly enforce both documents until and unless either document is amended.

Owners should not be unduly coerced into approving Declaration changes that are detrimental to the community and resident quality of life, even if they encourage additional rental opportunities.

Response to 7/27/21 Owner Truck Parking Email

In July 2021 a condominium owner sent out an email on truck parking at Jupiter Bay making several false claims:

  • Claim #1: There was no truck rule until June 30th, 2021.

Correction: Jupiter Bay Declarations, recorded in Palm Beach County in the mid-1980’s limited, in the “Use Restrictions” clause, truck parking on Jupiter Bay property. That original truck parking rule 10.4 was reaffirmed at a 2017 Board Meeting.

  • Claim #2: The Declaration’s original paragraph 10.4 was invalid.

Correction: An Association’s Declaration is a legal document that creates the condominium and governs the community. If provisions are not contradicted by FL Statutes or other parts of the Declaration, they are valid and enforceable.

  • Claim #3: For the past 24 years, there has been no enforceable truck rule.

Correction: For the past 30+ years, the truck rule was enforced through the registration of owner/renter vehicles, issuing of parking permits, and the posting of parking violation notices on illegally parked vehicles. The new amendments utilize the same process but, due to complexity in distinguishing legal from illegal vehicles, are prone to selective enforcement.

  • Claim #4: The Board has never towed a truck because the truck rule was unenforceable.

Correction: Neither the prior truck rule nor the amended rule require towing of illegally parked vehicles. The new rule says that vehicles in violation “shall be subject to being towed” but “towing or booting shall not be the exclusive remedy of the Association”. In most cases a parking violation notice results in compliance.

  • Claim #5: Tenants or Owners that were staying in Jupiter Bay with a truck prior to June 30th are grandfathered in.

Correction: The “grandfather clause” only applies to new Declaration provisions and does not invalidate prior language. Tenants or Owners staying in Jupiter Bay with a truck prior to June 30th were not, according to the Declaration, allowed to park their trucks on Association property.

  • Claim #6: As of August 2nd, they finally will have enforceable rules for both cars and trucks.

Correction: All provisions of Association Declarations, including those prior to August 2nd, are enforceable. (See response to Claim #2.) Amendments to Paragraph 10.4 of the Association’s Declaration passed on June 25, 2021 and are effective on the date that they are recorded in Palm Beach County.

Response to Attorney's 4/30/21 Letter

The Association's attorney attempted to clarify proposed truck parking changes to our Declaration in her April 30th letter. Following is a response from a concerned homeowner. The attorney has not responded to this nor the prior letter, which corrects her erroneous remarks at the 3/19 Board Meeting.


Your letter of April 30, 2021, which purports to clarify the proposed Declaration amendment’s truck parking allocation, adds additional confusion to this already muddled proposal. Only the West buildings have 32 units. The East buildings have 40 units in 3 of the buildings (A-C) and 15 units in the third building (D). How many designated trucks spots for East D?

However, this truck space allocation is inconsequential since:

  1. The Board of Directors “may alternatively promulgate a rule to increase the number of spots per building”, and
  2. “Additional truck parking shall be permitted in overflow truck parking areas designated as the Jupiter Bay East long-term parking area.” (Note that the Declaration does not define an East long-term parking area.)

These provisions give the Board unlimited authority to allow most owner, renter and lessee trucks and passenger vans to park anywhere on Jupiter Bay property.  The Amendment bypasses unit owner review and approval of each individual Board action.

Furthermore, the proposed Amendment:

      1. Allows the Board to “adopt and amend additional rules and regulations addressing”:
        • (i)   Parking on the street,
        • (ii)  The requirement of parking decals or other bar codes,
        • (iii) Fees associated with the issuance of decals, and
        • (iv)  Traffic safety rules.

        The Board should never be able to allow street parking, which is exclusively for the ingress and egress of vehicles (Declaration paragraph 3.6(c)) and emergency vehicle access, nor should the Board be able to set unspecified and unlimited fees for parking decals (§ 718.111 (4), F.S.).

      1. Grants the Board permission to utilize additional Association common areas for restaurant parking, providing that Jupiter Bay resident and guest parking is “not materially affected”.  The Association’s parking lots are common elements as described in the Declaration (reference my 3/20/21 email to you), and the Board should not have undefined authority to grant non-resident use of association common property.

Because the proposed Amendment language lacks clarity and can be misconstrued and grants undue Board authority without unit-owner oversight, it needs to be withdrawn and replaced with a more accurate and limited proposal.


Paul St. Clair

Twisted Tuna Parking Provisions

Paragraph 13(c) of the Twisted Tuna's lease with the Association contains the following parking provision:

Tenant understands that its parking lot is adjacent to Landlord's roadways and residential areas and will take commercially reasonable measures to help assure that its patrons do not park outside of Tenant's parking lot and additional parking areas agreed to by Landlord and Tenant. In addition to Tenant's parking lot, Tenant shall be permitted to:

  1. Use some parking spaces on the back side of the West parking lot (Building F) for employee parking,
  2. Allow customers to park on the grass of the entry road, and
  3. Allow customers to park in the north lot in the Jupiter Bay East area.

Landlord shall allow Tenant to reconfigure the  parking  lot  on  the  North  side  of  the restaurant by removing the existing parking bumpers and permitting lawn parking in that area prior to the Scheduled Opening Date. A copy of the permitted parking to Tenant is attached hereto as Exhibit G. Tenant agrees, and acknowledges, that the other permitted parking (marked in orange on Exhibit G) besides its parking lot (marked in green on Exhibit G) is common area for the Landlord, and that Landlord is unable to guarantee that parking to Tenant, and that said parking is first come first serve. Additionally, Landlord will work with Tenant to explore additional parking alternatives.

Any repairs to Landlord's irrigation system and/or grass as a result of Tenant's grass parking shall be fixed and/or paid for by Tenant. Tenant shall take commercially reasonable efforts to ensure its employees and customers are not parking in non-designated areas. Tenant shall provide parking attendants/valets at Tenant's sole cost during seasonal months and during events where the customer parking is anticipated to exceed its parking lot in an effort to mitigate customers parking in non-designated areas.


Landscaping is very important to the residents of Jupiter Bay because it contributes to the attractiveness of the community, the value of their investments and the overall quality of life.

The condominium association is solely responsible for landscaping at Jupiter Bay.  This includes the trees, shrubs, flowers, lawns, mulch, irrigation systems and other landscaping items.  Maintenance responsibility for the property grounds requires the Association to assure that the overall appearance of the property is preserved, as much as possible, as it was initially designed and built.  This means that trees destroyed by hurricanes or trees classified by the Florida Exotic Pest Plant Control Council as “nuisance and invasive exotic vegetation” need to be replaced.  It also means that shrubs, flowers and other landscaping throughout the community need to be maintained and replaced as necessary to preserve the area’s attractiveness.  Any landscaping improvements must be consistent with the overall landscaping theme.

Most homeowners value the grounds adjacent to their condominium unit.  In light of the Association’s limited landscaping budget, some homeowners, particularly those owning first floor units, have independently contributed to the beauty of our community by adding flowers, landscaping stones and other plants and materials to the areas adjacent to their units.  Some have funded the planting of memorial trees or shrubs or other special landscaping to beautify their area.

It has been suggested that all homeowners should be allowed to beautify the areas in proximity to their condo unit.  However, it is important that these landscaping enhancements are in compliance with our condominium documents and are compatible with existing landscaping.  The Association is obliged by its condominium documents to prevent any changes that could be considered common area material alterations as defined in Sections 2.5, 6.1(c), and 6.2 of our Declaration.  (Please reference the Alterations page of this website.)  Also, we must assure adherence to our Rule #44 which says “Owners who wish to contribute plants, materials, funds, or labor to common element landscaping areas/projects must receive approval from the Association”.

Unit Owner Keys

Because of the convenience and growing popularity of keypad locks, over 30 Jupiter Bay homeowners have replaced their conventional entrance door locks with keypads.  This has caused an issue with the Association being unable to access many of these units during the annual pest control treatment.  Many of these locks were installed without notifying the office or providing keys.

This episode has provoked a discussion among Board members as to how this change in door locks relates to the Association's Unit Owner Key Rule #5, which says "For pest control and emergency access, the Association must retain a pass-key to all units.  Whenever an Owner or agent alters any lock, or installs a new lock, the Unit Owner shall provide the Association with an additional key." Please reference the Rules & Regulations page of this website for more information.

A notice posted on the Jupiter Bay Condominium website reaffirms the Association's requirement to have a physical key for every condominium unit.  This, and the corresponding rule violation letter to various homeowners, was precipitated by an annual pest control treatment during which the Association was unable to access over 30 condominium units that had keypad locks installed.  Most were installed without notifying the office or providing keys.

The notice cited Florida statute 718.111(5) which says that “The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.”  This statute affirms the Association's "access rights" but does not provide a process or procedure for compliance.  It does not say that condo owners can decide on their own how they'll chose to comply with the statute - i.e., whether to give the Association a physical key, access code or other means of gaining entry to their unit.  But it does allow for Condo Associations to establish their own compliance rules and procedures.

Jupiter Bay already has a Rule #5 which says that “For pest control and emergency access, the Association must retain a pass-key to all units.  Whenever an Owner or agent alters any lock, or installs a new lock, the Unit Owner shall provide the Association with an additional key.”

Jupiter Bay's Board has reviewed and discussed this rule in light of the recent upgrading of many door locks to keypad units and has concluded that the Association will continue to require physical keys.  The primary reasons are as follows:

  1. All door locks, both conventional key locks and keypad locks, include a set of keys for gaining entry.
  2. Access codes may change frequently, possibly for each rental period, causing an administrative issue in obtaining, recording and protecting the most recent access code.
  3. Access codes can be memorized and disclosed easily leading to unauthorized unit access.
  4. Physical keys can be securely protected in a locked key-control safe in the Association office.
  5. It's easier to administrate a single procedure applicable to all 359 condominium units.

For these reasons the Association will continue to enforce Rule #5.  Any owner who changes their lock and/or key without notifying the management office or does not provide a new key is in violation of this rule and is subject to $100 per day (maximum of $1,000) fine.  In imposing this fine the Association must provide at least 14 days written notice and an opportunity for a hearing held before a committee of other unit owners.