Power Of Attorney Can Be Used To Delegate Certain Owner Rights – Florida Today

Ryan Poliakoff  |  Condo Q&A

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Dear Poliakoffs,

Can a legal owner of a condominium use a limited power of attorney to assign his rights as an owner to another person? An owner at a condominium wants to give me a power of attorney to exercise his rights to attend meetings, speak at meetings, contact the manager, use the facilities, vote in the election, serve as an officer or director, etc. Can he do this?

Signed, R.H.

Dear R.H.,

The answer is yes and no. There is no question that a power of attorney, if properly drafted and executed pursuant to Florida law, can be used to assign powers related to a condominium unit. The power of attorney should be specific as to what powers are being granted. However, some of the powers you listed would not be transferrable pursuant to a power of attorney. A power of attorney is essentially an agency document—it provides that someone else is serving as your agent or representative for specific purposes. It does not, however, actually make you akin to that person. So for example, if your association governing documents say that board members must be “members” of the association (usually, record title owners), you could not use a power of attorney to grant a non-member the right to serve on the board. Power of attorneys also cannot be used to vote in a condominium election, as proxy voting is prohibited, and voting by power of attorney is akin to proxy voting. Finally, I question whether you could use a power of attorney to grant someone the right to use common facilities—typically that right is reserved to the resident (but if you were residing in the unit that might be a different situation).

However, you can certainly use a power of attorney to attend board meetings, to speak at meetings, to vote on membership matters (other than an election), to be the primary contact for management, etc.

Dear Poliakoffs,

I have been a unit owner in my condominium for more than 19 years. At a previous board meeting, a board member stated that, when a unit is sold, the special assessment must be paid by the seller. I thought they were to be paid by the buyer?

Signed, J.S.

Dear J.S.,

It really depends on how the assessment was promulgated. First, a new buyer is jointly and severally liable with the previous owner for assessments which are unpaid on the unit. Let’s assume that the board passed a special assessment that was payable in full on a certain date; the assessment was not paid (the unit is delinquent), and the unit is to be sold. Assuming that a title company is involved, they will not allow the unit to transfer without including these owed amounts on the closing statement—and usually it would be between the buyer and seller to decide where those monies come from (it’s part of the business deal). Now, let’s instead assume that the board passed an assessment payable in 24 installments, and 12 of the installments have not yet come due. In that situation the new owner would typically just begin paying the new installments, just as if it were a regular assessment. Now, there is also a possible hybrid situation—the association could pass an assessment payable in full but allow owners to pay pursuant to a payment plan; and specify in that payment plan that in the event of a transfer of title, the full amount must be paid. There, too, the payment of the remaining amounts would be dealt with at the time of transfer, usually through the title company and as described on the closing statement. I think the better summary of your question is that the assessment must often be paid at the time of transfer; but who pays that assessment is really between the seller and buyer, as part of their business deal.

In fact, the form contracts prepared by the Florida Association of Realtors and the Florida Bar now include sections where the parties can designate who will pay assessments that are owed.

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, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. 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 condocolumn@gmail.com. Please be sure to include your location.

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