Oceanside No. Five, Fisher Island: condominium rules, fees and closing points

• The association's estoppel. Oceanside No. Five levies its own assessments, secured by its own lien (§ 13). The declaration promises a certificate within fifteen (15) days of a request by an 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).
• The first-refusal certificate, on every sale except a sale of Unit 7201. The owner gives the Board notice of the offer by registered mail, and the association issues a certificate, executed and acknowledged by an officer, that its right has terminated or been waived (§§ 18.1, 18.4–18.5). The declaration does not require it to be recorded; we record it with the deed. The next section has the periods.
• Notice of the sale. The § 18.1 notice is the notice: it gives the offer and its terms, and the owner must add any further information the Board asks for.
• No fee to the association is set in the recorded documents: no transfer fee, capital contribution, working-capital payment or approval fee. The certificate's fee may not exceed the maximum the Condominium Act allows (§ 18.5).
• Entity buyers. A unit owned by a corporation, partnership or trust may be occupied only by its officers, partners, beneficiaries or designees and their families (§ 17.1).
• Parking, golf-cart and storage assignments. These are Limited Common Elements, assigned by a written assignment that is not recorded, with a copy held by the association (§ 3.3(b), (d)). Ask which spaces go with the unit.
• The current rules, and anything adopted or recorded since 1995. Our copy of the recorded rules is incomplete (see the title points).

Yes, on sales and on leases. No owner "other than the Owner of Unit 7201", and apart from the developer, may sell or lease a unit except by following § 18 (§ 18). It works like this (§ 18.1):

1. An owner who receives a bona fide offer to buy or lease the unit, and intends to accept it, gives the Board notice by registered mail, with the offer's terms and any further information the Board asks for.
2. The association, or its designee, may elect within thirty (30) days after receiving the notice and that information to buy or lease on the same terms. A purchase needs the approval of a majority of the units present and voting at a meeting with a quorum (§ 18.2).
3. If it elects to buy, title closes within forty-five (45) days of its election. The seller pays the documentary stamps and delivers title evidence thirty (30) days before closing.
4. If it does not, the owner may close with the outside buyer within sixty (60) days. That paragraph speaks of the association failing to accept "within twenty (20) days", which conflicts with the thirty days in step 2. Allow thirty.
5. A sale that ignores § 18 is voidable by the association.
6. The association's certificate that the right has terminated is "conclusive with respect to all persons who rely on such certificate in good faith". Its fee may not exceed the Act's maximum, and there is no charge for approving the renewal of a previously approved lease (§§ 18.4–18.5).

The right reaches leases: a proposed lease is offered to the association first, as well as needing its approval under § 17.8.

Exempt transfers (§ 18.7): a transfer to the owner's family members, or to a trust or entity of theirs; sales by the developer or the association; a sale by an officer conducting a foreclosure sale; and a sale by an Institutional First Mortgagee that took title by foreclosure or deed in lieu. Gifts and devises are free of § 18 (§ 18.8), and a unit may be mortgaged without restriction (§ 18.9). A sale of Unit 7201 is outside § 18 altogether.

Yes, with the association's approval. Under § 17.8:

• only a whole unit may be leased, by a written lease that must "be approved by the Association" and must let the association terminate it if the tenant defaults;
• a unit may be leased "no more than one (1) time in any calendar year", and the owner must notify the association each time a tenant is to occupy it;
• the owner is jointly and severally liable for the tenant, and the association may require a deposit of up to one month's rent;
• no minimum term is stated, but a stay of more than one month counts as a lease unless the Board decides otherwise (§ 17.1).

No approval period, fee or interview is stated, and the lease must also be offered to the association first under § 18. Section 17.8 does not apply to Unit 7201.

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 1995 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 15 November 1995.

• Pages missing from our copy. Our copy of the declaration lacks recorded pages OR 15664/835–837 and 840, which held the original By-Laws, and OR 15664/847–848, pages 2 and 3 of the rules attached to the By-Laws as Schedule "A". The First Amendment restated the By-Laws in full; the rules were not restated, and our copy of them stops partway through rule 14. We pull the missing pages before relying on the rules.
• Two rules pages that were never recorded. Our set also holds two typed pages, numbered as rules 22 to 24, with no date, signature or adopting resolution. They are not part of the recorded declaration, and we rely on them only once the association confirms them.
• The lien and its priority. As amended, the lien relates back to "January 1, 1992, or the date of the recording of this Declaration, whichever shall last occur", which is 29 September 1992, but as to first mortgages of record it is effective only from the recording of a claim of lien (First Amendment § 13.2, OR 15810/3236). Assessments unpaid for fifteen (15) days bear interest at the highest lawful rate and a late fee of up to the greater of $25.00 or five percent (5%) of the installment; after thirty (30) days' written notice and a recorded claim of lien, the rest of the budget year's installments may be accelerated, and each owner is deemed to have assigned the unit's rents to the association on default (§ 13.2).
• The buyer owes what the seller did not pay. In a voluntary conveyance the grantee is jointly and severally liable with the grantor for all unpaid assessments (§ 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, a first mortgagee owes at most six (6) months of the assessments that fell due before it took title, and never more than one percent (1%) of the original mortgage debt, whichever is less (First Amendment § 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" (First Amendment § 6.1). A Material Amendment, one changing a unit's size, appurtenances or share, needs the joinder of the affected owners and their lienholders, and the developer could amend alone only while it controlled the Board, and never for time-shares or Material Amendments (First Amendment §§ 6.2, 6.4). An amendment affecting the leasing or sale restrictions 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).
• The 1995 pet amendment was made by the developer alone (OR 16992/202). It recites that the developer "currently has the right to elect a majority of the Board of Directors of the Association", but nothing else we hold shows whether it still controlled the Board in November 1995; if the pet limit matters to a buyer, that is a question for underwriting.
• Execution. The declaration was recorded without the association's joinder. The First Amendment's day of execution is illegible on our copy, the restated By-Laws it attaches are undated, and its recording date is faint, read as 11 February 1993. None of this affects a resale on its face.
• Unit 7201. It may be used "for any other lawful purpose" but not as a residence, no pet may be kept in it, and it is outside the leasing section and the right of first refusal (§§ 17.1, 17.3, 17.8, 18). Exhibit 2 labels it "COE" and nothing we hold says who owns it or what it is used for.
• 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), which § 22 incorporates; the mortgage under which The Mutual Benefit Life Insurance Company in Rehabilitation consented, which the consent does not identify by recording data; the condominium plans the Clerk noted at Condominium Plans Book 252, Page 13; and the six missing declaration pages.