7600 Oceanside, Fisher Island: condominium rules, fees and closing points

• The association's estoppel. 7600 Oceanside levies its own assessments, secured by its own lien (§ 13). The declaration promises a certificate within fifteen (15) days of a request by a purchaser, owner or mortgagee (§ 13.7). Chapter 718 now requires one sooner: "Within 10 business days after receiving a written or electronic request therefor … the association shall issue the estoppel certificate" (Fla. Stat. § 718.116(8)(a)). FICA's estoppel is ordered separately (master page).
• Right of first refusal: none. The declaration has no right of first refusal and no approval of buyers (§§ 17–18). The Articles let the association approve leases and transfers only "as may be provided by the Declaration", and the declaration provides none. So no waiver or approval letter is needed under the recorded documents, though the association should be asked whether any later amendment added one.
• No resale fee is set in the recorded documents. Two prospectus pages in our set, which are not recorded, say that a purchaser from the developer would pay a closing charge of 1.25% of the price and a contribution to this association and to FICA, each equal to twice the monthly assessment. Those were terms of the developer's own sales; they are not resale fees.
• The unit's number and share. The last share table recorded, in April 2001, numbers the top units 7671, 7672 and 7681 and lists 7612 and 7613 as two units, but whether it governs is unsettled. Ask the association which shares it assesses on, and read the title points before insuring a unit whose number or share changed.
• Entity buyers. The declaration sets no rule on who may occupy a unit owned by an entity; each unit is "used as a residence only" (§ 17.1).
• Parking and golf-cart assignments. Each unit's parking and golf-cart spaces were assigned by the developer when it sold the unit, in a writing that is not recorded, with a copy retained by or furnished to the association (§ 3.3(c)(ii)). Ask which spaces go with the unit.
• The shared-facility budget with 7400 Oceanside, and the current rules.

Yes, without the association's approval. Under § 17.8:

• only a whole unit may be leased, by a written lease that must let the association terminate it on the tenant's default;
• "No Unit may be leased for a term of less than six (6) months and no Unit may be leased more than one (1) time, including any renewals, in any calendar year";
• the owner must notify the association each time a tenant will occupy the unit, and is jointly and severally liable for the tenant;
• the association may require a deposit of up to one month's rent;
• while the unit is leased, the tenant, and not the owner, has the use rights in the common facilities.

No waiting period after purchase is stated.

FICA may refuse a tenant the ferry when an association approval that is required was not obtained (master page). The recorded declaration requires none, so this matters only if a later amendment added one.

No leasing amendment is in our set, and nothing recorded after April 2001 is. Under Chapter 718, "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 that amendment" (Fla. Stat. § 718.110(13)). A buyer acquires title after any amendment already in effect, so for an investor buyer the records need searching forward from 10 April 2001.

• Twenty-six units or twenty-seven? This is the point to settle before insuring a 7600 Oceanside unit.
  • As recorded. Section 3.1 creates "twenty six (26) Units". The share table recorded as Exhibit 3 lists 26, among them a single unit "7612-13" with a 7.205% share, and units numbered 7672, 7673 and 7682 (Exh. 3).
  • March 2001. A developer's amendment recorded 15 March 2001 (OR 19547/4855) renumbered 7672, 7673 and 7682 as 7671, 7672 and 7681. No share changed.
  • April 2001. A second developer's amendment, recorded 10 April 2001 (OR 19593/4594), recites the developer's power under § 6.4 "to correct a scrivener's error or effect any change whatsoever" and "a scrivener's error in the numbering of the Units in Exhibit '3'". It then replaces Exhibit 3 "in its entirety" with a table headed "2001 Assessments" that lists 27 units: 7612 and 7613 as separate units of 3.4976% each, and a new share for every other unit. 7611, for example, goes from 4.997% to 3.9620%, and 7681 from 7.462% to 7.5488%. The table keeps the March numbering. Section 3.1 was not amended in our set, so the declaration still says 26 units.
  • Why it matters. The April amendment does more than correct numbering: it divides one unit into two and changes every unit's share. A change in shares is a "Material Amendment", which needs the joinder of the affected owners and all their lienholders (§ 6.2), and the developer's power to amend alone does not reach Material Amendments (§ 6.4). Reallocating interests in the common elements also needs a Majority of Institutional First Mortgagees (§ 20.2(e)). The April amendment is signed by the developer alone, with no owner joinder and no consent from Bank of America. The developer may still have owned every unit when it signed, five weeks after the declaration was recorded, but nothing we hold shows that.
  • What follows. Counsel should decide whether the amendment validly changed the shares and created a 27th unit, and the records after 10 April 2001 need searching for a ratifying or corrective amendment. Until then, ask the association which shares it assesses on, compare the unit's share with the association's estoppel, and treat a unit whose number or share changed, above all 7612, 7613, 7671, 7672 or 7681, as a question for underwriting. The association's estimated 2001 budget in our set, which is not recorded, is for "27 Units".
• The lien and its priority. Assessments not paid within ten (10) days bear interest at 15% a year and a late fee of up to the greater of $25.00 or 5%. The lien relates back to the recording of the declaration, but as to first mortgages it is effective only from the recording of a claim of lien (§ 13.3).
• The buyer owes what the seller did not pay. The owner is jointly and severally liable with the previous owner for all unpaid assessments due up to the conveyance (§ 13.1), as Chapter 718 also provides: "A unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title" (Fla. Stat. § 718.116(1)(a)).
• Bank-owned resales. A first mortgagee's liability for assessments that fell due before it took title is limited to the lesser of six (6) months' assessments or 1% of the original mortgage debt, if the association was joined in the foreclosure (§ 13.6). Chapter 718 now sets the lesser of the unpaid common expenses and regular periodic assessments "which accrued or came due during the 12 months immediately preceding the acquisition of title" or "One percent of the original mortgage debt" (§ 718.116(1)(b)1.). Which applies to a particular sale is for underwriting; the estoppel shows what the association claims.
• Large assessments need the owners. Special and capital improvement assessments over $125,000.00 in a year, or that would raise the year's assessments above 115% of the prior year's, need the approval of a majority of the units represented at a meeting with a quorum (§ 13.2(c)).
• Amending the declaration takes 67% of the voting interests (§ 6.1). Material Amendments need the joinder of the affected owners and lienholders (§ 6.2), and the developer could amend alone only while it could elect a majority of the Board, and never for time-shares or Material Amendments (§ 6.4). Amendments affecting voting, assessment liens, the reallocation of interests, unit boundaries, leasing or sale restrictions and other listed matters also need a Majority of Institutional First Mortgagees (§ 20.2).
• The shared facilities. If the adjacent condominium was built and its declaration so provides, its owners have an easement to use 7600's emergency generator, swimming pool, pool deck and accessory outdoor common facilities, with the costs shared by unit count and 7600's association regulating the use (§ 22). When 7600 was declared, the developer said it had no obligation to build the adjacent condominium (§ 2.2). It was built: 7400 Oceanside's declaration, recorded 18 September 2002 (OR 20666/292), takes up the right (7400 Oceanside). No agreement between the two associations is in our set.
• The developer's mortgage. Bank of America's mortgage, recorded 16 September 1999 (OR 18784/3025), consented to the declaration. We confirm its release from the unit being insured.
• FICA. FICA's own lien, and which version of its master covenants governs, are on the master page.
• Cited but not in our set: the Master Covenants (OR 13008/2052); the Bank of America mortgage; and the condominium plans the Clerk noted at Condominium Plans Book 343, Page 5.

The FAQ, prospectus pages, budget and proposed survey from 1999–2001 in our set are not recorded.