Bayview No. Three, Fisher Island: condominium rules, fees and closing points

• The association's estoppel. Bayview No. Three levies its own assessments, secured by its own lien (§ 13). The declaration promises a certificate within fifteen (15) days (§ 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).
• The Certificate of Termination of Right of First Refusal, executed and acknowledged by an officer of the association, which "shall be conclusive with respect to all persons who rely on such certificate in good faith" (§ 18.5). We record it with the deed. The next section has the periods.
• Notice of the sale, by registered mail to the Board, of the contract and its terms (§ 18.1).
• No fee to the association is set in the recorded documents: no transfer fee, capital contribution or approval fee. The certificate's fee may not exceed the charges reasonably required or the maximum the Condominium Act allows (§ 18.5).
• The unit's current share, from the 2001 amendment, not the 1992 Exhibit 2. Unit 5294 is now "5294-H*", at 3.6550% (OR 19445/657). The title points explain why.
• Entity and trust buyers. Occupancy of a unit owned by an entity or trust is limited to its officers, partners, beneficiaries or designees and their families (§ 17.1).
• Parking, golf-cart and storage assignments. These are Limited Common Elements assigned in the association's records, not in the public records (§ 3.3). The association's 2021 rules, which are not recorded, say the assigned spaces are listed in its records and on its map of the garage.

Yes, on sales and on leases, in the same words as Bayview No. One's and No. Two's (§ 18.1):

1. The owner gives the Board notice of a bona fide offer to buy or lease by registered mail.
2. The association, or its designee, may elect by certified mail within thirty (30) days to buy or lease on the same terms. A purchase needs the prior approval of the owners of a majority of the units present in person or by proxy and voting at a meeting with a quorum (§ 18.2).
3. If it elects to buy, title closes at the association's attorneys' office within forty-five (45) days.
4. If it fails to accept, or to reject a proposed lease, "within twenty (20) days after receipt of notice and all additional information requested", the owner may accept the outside offer within sixty (60) days. The twenty days conflict with the thirty in step 2. Allow thirty.
5. "Any purported sale or lease of a Unit in violation of this Section shall be voidable at any time at the election of the Association" (§ 18.1).
6. The association gives the certificate described in the section above. "No charge shall be made in connection with the consideration of the approval of an extension or renewal of a previously approved lease" (§ 18.5).

Exempt transfers (§ 18.7): a sale, lease or conveyance by the owner to a spouse, adult children, parents, parents-in-law or adult siblings, or to a trustee, corporation or other entity of which the owner or those relatives are and remain the sole beneficiaries or equity owners; sales by the developer or the association; a sale by an officer conducting a foreclosure; and a sale by an Institutional First Mortgagee that took title by foreclosure or deed in lieu. Each succeeding owner stays bound by § 18. Gifts, devises and inheritance are free of it (§ 18.8), and each owner may mortgage the unit "without restriction" (§ 18.9).

Yes, with the association's approval. "All leases shall be in writing, be approved by the Association", only a whole unit may be leased, and a unit may be leased "no more than one (1) time in any calendar year". The association may require a deposit of up to one month's rent (§ 17.8). No minimum term is stated, but a stay of more than one month counts as a lease (§ 17.1). No approval fee, interview or day count is stated, and every lease is also offered to the association first under § 18.1. The developer was exempt from § 17 except the pet rule and lease approval (§ 17.13).

The association's 2021 rules, which are not recorded, add nothing on leasing.

FICA may refuse a tenant the ferry when a required approval was not obtained (master page), so the association's approval should be in hand before the tenant arrives.

No leasing amendment is in our set, and nothing recorded after January 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 January 2001.

• The 2001 share restatement. On 1 December 2000 the Board, by majority vote, approved an amendment to correct a scrivener's error, recorded 10 January 2001 (OR 19445/657). It recites that the shares should have been based on each unit's square footage, and relies on the Condominium Act's procedure for correcting a scrivener's error by an amendment approved by the board. It restates the share of every unit type, for example Type A from 2.220% to 2.2283% and Type M from 3.870% to 3.8408%, and moves Unit 5294 into a new type "H*" at 3.6550%. The total stays 37 units and 100.00%. Two points remain open:
  • The affidavit it relies on is not recorded with it. The amendment's recitals cite an architect's affidavit as its Affidavit "A", but the recorded amendment is three pages and the affidavit is not among them. It was either never attached or recorded separately, and nothing in our set shows which.
  • A board-only change to every unit's share. Whether the scrivener's-error procedure reaches a restatement of every share is a question for counsel. Until it is answered, we describe the unit by the 2001 amendment and check its share against the estoppel.
• The lien. As recorded, assessments unpaid fifteen (15) days bear interest "at the highest lawful rate", plus "an administrative late fee in an amount not to exceed the greater of $25.00 or five percent (5%) of each delinquent installment"; a claim of lien lasts one (1) year unless suit is filed; each owner is deemed to assign the unit's rents to the association; and after thirty (30) days' notice and a recorded claim of lien, the rest of the budget year's installments may be accelerated (§ 13.2). As amended in 1992, the lien relates back to the later of a January 1992 date and the recording of the declaration, so to 4 May 1992, but "as to first mortgages of record, the lien is effective from and after recording of a claim of lien" (First Amendment ¶ 5, OR 15756/190).
• The buyer owes what the seller did not pay. "In the case of a voluntary conveyance, the grantee shall be jointly and severally liable with the grantor for all unpaid Assessments" up to the conveyance (§ 13.1), and "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. As amended, an Institutional First Mortgagee that acquires title by foreclosure or deed in lieu is liable for assessments that fell due before it received the deed, but its "liability is limited to a period not exceeding six (6) months, but in no event does … exceed one percent (1%) of the original mortgage debt", and the liability does not begin until thirty (30) days after the mortgagee received the last payment of principal or interest (First Amendment ¶ 6, new § 13.5). 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.
• Amending the declaration takes votes "in excess of 66 2/3% of the voting interests of Unit Owners". A material change to a unit needs the joinder of its owner and mortgagees, insurance, casualty and condemnation changes need the Primary Institutional First Mortgagee, and the developer could amend alone only while in control (First Amendment ¶ 3, new §§ 6.1–6.4). An amendment directly affecting a list of subjects, among them leasing and restrictions on sale, also needs the approval of Institutional First Mortgagees holding mortgages on units with at least fifty-one percent (51%) of the mortgaged units' votes (§ 21.2).
• Stamps. The declaration's recording stamp is faint: its month and day cannot be read, only what looks like a time of 10:43. Both amendments recite recording on 4 May 1992. The First Amendment's clerk's file number is partly illegible; we confirm it from the Clerk's index.
• The shared pool. Owners "shall have the right to use the swimming pool and related facilities located within the "condominium property" of an adjacent condominium known as "Bayview at Fisher Island Condominium No. Two"", sharing the costs by unit count, with No. Two's association regulating use (§ 22). No agreement between the two associations is in our set.
• Rules that are not recorded. The 2021 revision of the rules in our set is unsigned and carries no adoption certificate or recording. We rely on it only once the association confirms it.
• 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 architect's affidavit cited by OR 19445/657, and the Master Covenants (OR 13008/2052).

The Rules and Regulations "Revised as of December 29, 2021" in our set are not recorded.